Guarantees. Subject to this Article 10, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 4 contracts
Samples: Indenture (Asbury Automotive Group Inc), Indenture (Asbury Automotive Group Inc), Supplemental Indenture (Asbury Automotive Group Inc)
Guarantees. Subject to this Article 10, each of the Guarantors herebyEach Guarantor, jointly and severally, unconditionally guarantees guarantees, on an unsecured senior basis, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations Obligations of the Company hereunder Issuers under this Indenture or thereunderthe Notes, that: (ai) the principal and of, premium, if any, of, and interestinterest and Liquidated Damages, if any, on, on the Notes will be promptly paid in full when due, whether at maturitythe maturity or interest payment or mandatory redemption date, by acceleration, redemption call for redemption, offer to purchase or otherwise, and interest on the overdue principal and of, premium, if any of, and interestinterest and Liquidated Damages, if any, on, on the Notes, if any, if lawful, Notes and all other obligations Obligations of the Company Issuers to the Holders or the Trustee hereunder under this Indenture or thereunder the Notes will be promptly paid in full or performed, all in accordance with the terms hereof of this Indenture and thereofthe Notes; and (bii) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that same they will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally ; and jointly and severally with each other Guarantor, to pay (iii) any and all costs and expenses (including, without limitation, counsel fees and expensesincluding reasonable attorneys' fees) incurred by the Trustee under this Indenture or any Holder in enforcing any rights under a Subsidiary any Guarantee with respect to a Guarantorthe Notes will be paid. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall any Guarantor will be jointly and severally obligated (subject to any grace periods allowed pursuant to Section 6.1 hereof) to pay the same immediatelywhether or not such failure to pay has become an Event of Default which could cause acceleration pursuant to Section 6.2 hereof. An Event of Default under this Indenture or the Notes shall constitute an event of default under any Guarantee of the Notes, and shall entitle the Holders of Notes to accelerate the Obligations of any Guarantor hereunder in the same manner and to the same extent as the Obligations of the Issuers. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations its Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the CompanyIssuers, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorany Guarantor. Each Any Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of either or both of the Company, any right to require a proceeding first against the CompanyIssuers, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary its Guarantee shall with respect to the Notes will not be discharged except by complete performance of the obligations contained in its Obligations under the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Companyany Issuer, the Guarantors any Guarantor or any custodianCustodian, trusteeTrustee, liquidator or other similar official acting in relation to either the Company any Issuer or the Guarantors, any Guarantor any amount paid by either any such entity to the Trustee or such Holder, this Subsidiary Guaranteeany Guarantee to the Notes, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders Holder in respect of any obligations Obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteehereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Guarantor for the purpose of this Subsidiary Guaranteesuch Guarantee of the Notes. The Guarantors A Guarantor shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders Holder under its Guarantee of the GuaranteeNotes. Each Holder of a Note by its acceptance thereof agrees to and shall be bound by the provisions of this Section 10.1.
Appears in 3 contracts
Samples: Supplemental Indenture (Meristar Hospitality Corp), Credit Agreement (Meristar Hospitality Corp), Supplemental Indenture (Meristar Hospitality Corp)
Guarantees. Subject The Guarantors (as defined in the Indenture (the “Indenture”) referred to in the Note upon which this Article 10, notation is endorsed and each hereinafter referred to as a “Guarantor”) have unconditionally guaranteed on a senior subordinated basis (such guarantee by each Guarantor being referred to herein as the “Guarantee”) (i) the due and punctual payment of the Guarantors hereby, jointly principal of and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, interest on the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration, redemption acceleration or otherwise, otherwise and interest on the overdue principal and premiumprincipal, if any ofany, and interest on any interest, if any, on, to the Notes, if any, if extent lawful, of the Notes and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; set forth in of the Indenture and (bii) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise. In addition The obligations of each Guarantor to the foregoing, each Guarantor also agrees, unconditionally Holders and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return pursuant to the Company, Guarantee and the Guarantors or any custodian, trustee, liquidator or other similar official acting Indenture are expressly set forth and are expressly subordinated and subject in relation to either the Company or the Guarantors, any amount paid by either right of payment to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until prior payment in full of all obligations guaranteed herebyGuarantor Senior Debt of such Guarantor, to the extent and in the manner provided, in Article XII of the Indenture, and reference is hereby made to such Indenture for the precise terms of the Guarantee therein made. Each Guarantor further agrees thatNo past, present or future stockholder, director, officer, employee or incorporator, as between the Guarantorssuch, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of any of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof Guarantors shall have any liability for any obligation of the purposes of this Subsidiary GuaranteeGuarantors under the Guarantee or the Indenture or for any claim based on, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofor by reason of, such obligations (whether or not due their creation. Each Holder of a Note by accepting a Note waives and payable) shall forthwith become due releases all such liability. The waiver and payable by release are part of the Guarantors consideration for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights issuance of the Holders under the GuaranteeGuarantees. SUBSIDIARY GUARANTORS: PrintCo., Inc. By: Name: Title: Webcraft, LLC By: Name: Title: Webcraft Chemicals, LLC By: Name: Title: Enteron Group, LLC By: Name: Title: Big Flower Digital Services (Delaware), Inc. By: Name: Title: Big Flower Digital LLC By: Name: Title:
Appears in 3 contracts
Samples: Indenture (Vertis Inc), Indenture (Vertis Inc), Vertis Inc
Guarantees. Subject to this Article 10, each of the Guarantors herebyEach Guarantor unconditionally guarantees, jointly with each other Guarantor and severally, unconditionally guarantees to each Holder of as a Note authenticated primary obligor and delivered by the Trustee and to the Trustee and its successors and assignsnot merely as a surety, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the due and punctual payment by each Borrower (other than itself) of (i) the principal of and premium, if any, ofand interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Revolving Credit Advances made to such Borrower, when and interest, if any, on, the Notes will be promptly paid in full when as due, whether at maturity, by acceleration, redemption upon one or more dates set for prepayment or otherwise, and interest on (ii) each payment required to be made by such Borrower under the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders Credit Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements, interest thereon and obligations guaranteed hereby until to provide cash collateral, and (iii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of such Borrower to the Administrative Agent and each Lender under the Credit Agreement and the other Loan Documents (collectively, the “Guaranteed Parties”), whether such amounts shall have accrued prior to, on or after the Closing Date, (b) the due and punctual payment in full and performance of all covenants, agreements, obligations and liabilities of each Borrower (other than itself), monetary or otherwise, under or pursuant to the Credit Agreement and the other Loan Documents, and (c) the due and punctual payment and performance of all obligations guaranteed herebyof each Borrower (other than itself), monetary or otherwise, under each Interest Rate Agreement in effect on the Closing Date to which any Lender (or an Affiliate of a Lender) is a party and each Interest Rate Agreement entered into after the Closing Date with any counterparty that is a Lender (or an Affiliate of a Lender) at the time such Interest Rate Agreement is entered into (all the monetary and other obligations referred to in the preceding clauses (a) through (c) being collectively called the “Obligations”). Anything contained in this Agreement to the contrary notwithstanding, the obligations of TRS and ROC hereunder, shall be limited to a maximum aggregate amount equal to the greatest amount that would not render such obligations subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any provisions of applicable law (collectively, the “Fraudulent Transfer Laws”), in each case after giving effect to all other liabilities of TRS and ROC contingent or otherwise, that are relevant under the Fraudulent Transfer Laws and after giving effect as assets to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation, contribution, reimbursement, indemnity or similar rights of TRS and ROC, as the case may be, pursuant to (i) applicable law, or (ii) any agreement providing for an equitable allocation among TRS or ROC, as the case may be, and other Affiliates of Rayonier of obligations arising under Guarantees by such parties. Each Guarantor further agrees thatthat the Obligations may be extended or renewed, as between the Guarantorsin whole or in part, on the one handwithout notice to or further assent from it, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, that it will remain bound upon its guarantee notwithstanding any stay, injunction extension or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event renewal of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeObligation.
Appears in 3 contracts
Samples: Credit Agreement (Rayonier Inc), Credit Agreement (Rayonier Inc), Guarantee Agreement (Rayonier Inc)
Guarantees. Subject to this Article 10, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and of, premium, if any, of, and interest, if any, on, interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interestpremium, if any, on, and interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in the case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this IndentureIndenture or pursuant to Section 10.04. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof6, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-non paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 3 contracts
Samples: Supplemental Indenture (E Trade Financial Corp), Supplemental Indenture (E Trade Financial Corp), Supplemental Indenture (E Trade Financial Corp)
Guarantees. Subject to this Article 10Purchaser acknowledges that in the course of conduct of their business, each of the Guarantors hereby, jointly Sellers and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: their Affiliates may have entered into various arrangements (a) the principal and premiumin which guarantees, if anyletters of credit, ofsureties, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, bonds or similar arrangements were issued by acceleration, redemption Sellers or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; their Affiliates and (b) in which Sellers or their Affiliates are the primary obligors on other Contracts, in any such case to support or facilitate such business. The arrangements entered into by Sellers or their Affiliates referred to in the foregoing clauses (a) and (b), solely to the extent relating to any Acquired Assets or Assumed Liabilities set forth in Schedule 6.10, are referred to as the “Seller Support Obligations”. It is understood that the Seller Support Obligations are not intended to continue after the Closing. Purchaser agrees that it shall use its reasonable best efforts to obtain replacements for the Seller Support Obligations (which shall include the full and unconditional release of Sellers and their Affiliates) that will be in effect at the Closing or, in the case of any extension Seller Support Obligations described in the foregoing clause (b), will use its commercially reasonable efforts to arrange for itself or one of time its Subsidiaries to be substituted as the primary obligor thereon as of payment the Closing through an assumption, accession, acknowledgement or renewal similar agreement (which shall include the full and unconditional release of any Notes Sellers and their Affiliates) with the beneficiary of the applicable Seller Support Obligation. Whether or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with not Purchaser is able to satisfy the terms of the extension or renewalimmediately preceding sentence, whether at stated maturityPurchaser shall indemnify Sellers and their Affiliates and each of their respective officers, by acceleration or otherwise. In addition to the foregoingdirectors, each Guarantor also agreesemployees, unconditionally agents and jointly representatives from and severally with each other Guarantor, to pay against any and all expenses (including, without limitation, counsel fees and expenses) Liabilities incurred by any of them relating to the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a GuarantorSeller Support Obligations. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reasonPurchaser agrees that, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereofSeller Support Obligation, its reasonable best efforts pursuant to this Section 6.10 shall include, if requested, the recovery execution and delivery by Purchaser, or by an Affiliate of any judgment against Purchaser acceptable to the Companybeneficiary of such Seller Support Obligation, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court replacement guarantee that is substantially in the event form of insolvency such Seller Support Obligation. All costs and expenses incurred in connection with providing the release or bankruptcy substitution of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, Seller Support Obligations shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable borne by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteePurchaser.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Yellow Corp), Asset Purchase Agreement (Saia Inc), Asset Purchase Agreement (XPO, Inc.)
Guarantees. Subject to The provisions of this Article 10Thirteen shall be applicable to the extent that any Note Guarantee is in effect or is required to be in effect in accordance with the terms of this Indenture. Except to the extent otherwise provided in this Indenture, each the Securities shall not be guaranteed by any Subsidiaries of the Guarantors herebyIssuer. Each Guarantor, if any, hereby unconditionally guarantees, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assignsassigns (a) the full and punctual payment of principal of (and premium, irrespective if any) and interest on the Securities when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the validity Issuer under this Indenture and enforceability the Securities and (b) the full and punctual performance within applicable grace periods of all other obligations of the Issuer under this Indenture and the Securities (all the foregoing being hereinafter collectively called the “Obligations”). Each Guarantor further agrees that the Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Guarantor, and that such Guarantor will remain bound under this Article Thirteen notwithstanding any extension or renewal of any Obligation. Each Guarantor waives presentation to, demand of, payment from and protest to the Issuer of any of the Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Securities or the Obligations. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) any change in the ownership of such Guarantor. Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Obligations. Except as expressly set forth in Sections 803, 804, 1017, 1019, 1202, 1203, 1303 and 1308, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the Company hereunder invalidity, illegality or thereunderunenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, that: the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of such Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity. Each Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of (a) the principal and or premium, if any) or interest on any Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, of, and interestupon the failure of the Issuer to pay the principal of (or premium, if any, on, ) or interest on any Obligation when and as the Notes will be promptly paid in full when same shall become due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Obligation, each Guarantor hereby promises to and interest on will, upon receipt of written demand by the overdue principal and premiumTrustee, if any offorthwith pay, and interestor cause to be paid, if anyin cash, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with an amount equal to the terms hereof and thereof; and sum of (bi) in case of any extension of time of payment or renewal of any Notes or any the unpaid amount of such other obligationsObligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally (ii) accrued and jointly and severally with each other Guarantor, to pay any and all expenses unpaid interest on such Obligations (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, but only to the extent theretofore discharged, shall be reinstated in full force not prohibited by law) and effect(iii) all other monetary Obligations of the Issuer to the Holders and the Trustee. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Obligations guaranteed hereby until payment in full in cash of all obligations guaranteed herebyObligations. Each Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof Five for the purposes of this Subsidiary Guaranteesuch Guarantor’s Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereofFive, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Guarantor for the purpose purposes of this Subsidiary GuaranteeSection 1301. The Guarantors shall have Each Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the right to seek contribution from Trustee or any non-paying Guarantor so long as the exercise of such right does not impair the Holder in enforcing any rights of the Holders under the Guaranteethis Section 1301.
Appears in 3 contracts
Samples: Supplemental Indenture (Level 3 Communications Inc), Supplemental Indenture (Level 3 Communications Inc), Supplemental Indenture (Level 3 Communications Inc)
Guarantees. Subject to the provisions of this Article 10, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations other Obligations of the Company Issuers hereunder or thereunder, that: (a) the principal of, premium and premiuminterest (including Additional Interest, if any, of, and interest, if any, on, ) on the Notes will shall be promptly paid in full when due, whether at maturitythe maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, premium and interestinterest (including Additional Interest, if any, on, ) on the Notes, if any, if to the extent lawful, and all other obligations Obligations of the Company Issuers to the Holders or the Trustee hereunder or thereunder will under this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms hereof of this Indenture and thereofthe Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturityStated Maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereofof this Indenture and the Notes, the recovery of any judgment against the CompanyIssuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a guarantorSubsidiary Guarantor. Each To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyIssuers, any right to require a proceeding first against the CompanyIssuers, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuers or Subsidiary Guarantors, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company Issuers or the Subsidiary Guarantors, any amount paid by either any of them to the Trustee or such Holder, this Subsidiary Guaranteethese Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteethese Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Guaranteethese Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.these Guarantees. Back to Contents
Appears in 3 contracts
Samples: Atlas America Inc, Atlas Pipeline Holdings, L.P., Atlas Pipeline Partners Lp
Guarantees. Subject to this Article 10the limitations set forth in Section 11.04, each of the Guarantors hereby, jointly and severally, unconditionally guarantees Guarantee to each Holder of a Note authenticated and delivered by the Trustee Notes and to the Trustee and its their respective successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations Obligations of the Company hereunder or thereunder, that: (a) the principal and of, premium, if any, of, and interest, if any, on, interest on the Notes will shall be promptly paid in full when due, subject to any applicable grace period, whether at maturityStated Maturity, by acceleration, redemption redemption, required purchase or repurchase or otherwise, and interest on the overdue principal of and interest on premium, if any of, and interest, if any, on, the Notes, if anyand interest, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturityStated Maturity, by acceleration acceleration, redemption, required purchase or repurchase or otherwise. In addition the event the Company fails to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing make payment when due due, subject to any applicable grace period, of any amount so guaranteed Guaranteed or any performance so guaranteed Guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the CompanyCompany or any Guarantor, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorguarantor (other than the payment in full of the amounts Guaranteed). Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the CompanyCompany or another Guarantor, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee the Notes Guarantees shall not be discharged except by complete performance of the obligations contained in the Notes and this IndentureIndenture Documents. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors Company or any custodianof the Guarantors, trustee, liquidator or any Custodian or other similar official acting in relation to either the Company or any of the Guarantors, any amount paid by either to the Trustee or to such Holder, this Subsidiary Guaranteethe Notes Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed Guaranteed hereby until payment in full of all obligations guaranteed Guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed Guaranteed hereby may be accelerated as provided in Article 6 hereof 7 for the purposes of this Subsidiary Guaranteethe Notes Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, Guaranteed hereby and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof7, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guaranteethe Notes Guarantees. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Trustee or the Holders under the GuaranteeNotes Guarantees.
Appears in 3 contracts
Samples: Indenture (CURO Group Holdings Corp.), Indenture (CURO Group Holdings Corp.), Indenture (CURO Group Holdings Corp.)
Guarantees. Subject to this Article 10Fourteen, to the extent provided for in any series of Securities under this Indenture, each of the Guarantors hereby, Guarantor hereby jointly and severallyseverally irrevocably and unconditionally Guarantees, unconditionally guarantees as a primary obligor and not merely as a surety, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assignsassigns (a) the full and punctual payment when due, irrespective whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the validity Company under this Indenture (including obligations to the Trustee) and enforceability the Securities, whether for payment of principal of or interest on the Securities and all other monetary obligations of the Company under this Indenture and the Securities and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under this Indenture and the Securities (all the foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from each such Guarantor, and that each such Guarantor shall remain bound under this Article Fourteen notwithstanding any extension or renewal of any Guaranteed Obligation. Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Securities or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (f) any change in the ownership of such Guarantor, except as provided in Section 14.03. Each Guarantor hereby waives any right to which it may be entitled to have its obligations hereunder divided among the Guarantors, such that such Guarantor’s obligations would be less than the full amount claimed. Each Guarantor hereby waives any right to which it may be entitled to have the assets of the Company first be used and depleted as payment of the Company’s or such Guarantor’s obligations hereunder prior to any amounts being claimed from or paid by such Guarantor hereunder. Each Guarantor hereby waives any right to which it may be entitled to require that the Company be sued prior to an action being initiated against such Guarantor. Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Except as expressly set forth in Sections 13.02, 14.02 and 14.03, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, wilful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of any Guarantor as a matter of law or equity. Each Guarantor agrees that its Guarantee is a continuing Guarantee and shall remain in full force and effect until payment in full of all the Guaranteed Obligations. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company hereunder or thereunderotherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, that: (a) upon the failure of the Company to pay the principal of or interest on any Guaranteed Obligation when and premium, if any, of, and interest, if any, on, as the Notes will be promptly paid in full when same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Guaranteed Obligation, each Guarantor hereby promises to and shall, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (a) the unpaid principal amount of such Guaranteed Obligations, (b) accrued and unpaid interest on such Guaranteed Obligations (but only to the overdue principal extent not prohibited by law) and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and (c) all other monetary obligations of the Company to the Holders or and the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediatelyTrustee. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the obligations Guaranteed Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof Five for the purposes of this Subsidiary Guaranteeany Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Guaranteed Obligations guaranteed hereby, and (yb) in the event of any declaration of acceleration of such obligations Guaranteed Obligations as provided in Article 6 hereofFive, such obligations Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the Guarantors for purposes of this Section 14.01. Each Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holder in enforcing any rights under this Section 14.01. Upon request of the Trustee, each Guarantor shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeIndenture.
Appears in 3 contracts
Samples: Owens & Minor Distribution, Inc., Owens & Minor Inc/Va/, O&M Halyard, Inc.
Guarantees. Subject to this Article 1011, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interestinterest and Special Interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interestinterest and Special Interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 3 contracts
Samples: Indenture (Asbury Automotive Group Inc), Supplemental Indenture (Asbury Automotive Group Inc), Indenture (Asbury Automotive Group Inc)
Guarantees. Subject With respect to each series of Securities to which this Article 1011 is expressly made applicable, each of the Guarantors hereby, jointly Guarantor hereby unconditionally and severally, unconditionally irrevocably guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: assigns (ai)(a) the full and punctual payment of principal and premium, if any, of, and interest, if any, on, interest on the Notes will be promptly paid in full Securities of such Holder when due, whether at maturity, by acceleration, by redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other monetary obligations of the Company to the Holders or and the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with under this Indenture and the terms hereof and thereof; Securities and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Securities and (ii) in the case of any extension of time of payment or renewal of any Notes Securities or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewalrenewal (all of the foregoing being hereinafter collectively called the “Guarantees”). The Guarantor waives presentation to, whether at stated maturitydemand of, payment from and protest to the Company of any of the Guarantees and also waives notice of protest for nonpayment. The Guarantor waives notice of any default under the Securities or the Guarantees. The Guarantees hereunder shall not be affected by acceleration (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Securities or any other agreement or otherwise. In addition to ; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the foregoingterms or provisions of this Indenture, each Guarantor also agrees, unconditionally and jointly and severally with each the Securities or any other Guarantor, to pay agreement; (d) the release of any and all expenses (including, without limitation, counsel fees and expenses) incurred security held by any Holder or the Trustee under this Indenture for the Guarantees or any of them; (e) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Guarantees or (f) any change in enforcing any rights under a Subsidiary Guarantee with respect to a the ownership of the Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each The Guarantor further agrees that this is its Guarantees hereunder constitute a guarantee of payment payment, performance and compliance when due (and not a guarantee of collection). The Guarantors Guarantor hereby agree agrees that their its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or failure to enforce the provisions of the validity, regularity or enforceability of the Notes any Security or this Indenture, or any waiver, modification, consent or indulgence granted to the absence Company with respect thereto (unless the same shall also be provided the Guarantor), by the Holder of any action to enforce Security or the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereofTrustee, the recovery of any judgment against the Company, Company or any action to enforce the same same, or any other circumstance circumstances which might may otherwise constitute a legal or equitable discharge of a surety or guarantor; provided that, notwithstanding the foregoing, no such waiver, modification, indulgence or circumstance shall, without the consent of the Guarantor, increase the principal amount of a Security or the interest rate thereon or increase any premium payable upon redemption thereof. The Guarantees shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of a guarantor. Each Guarantor hereby waives diligencesetoff, presentmentcounterclaim, demand of payment, filing of claims with a court in the event of insolvency recoupment or bankruptcy termination whatsoever or by reason of the Companyinvalidity, any right to require a proceeding first against illegality or unenforceability of the CompanyGuarantees or otherwise. Without limiting the generality of the foregoing, protest, notice and all demands whatsoever and covenant the Guarantor covenants that this Subsidiary Guarantee the Guarantees shall not be discharged except or impaired or otherwise affected by complete performance the failure of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any court waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of the Guarantor or would otherwise operate as a discharge of the Guarantor as a matter of law or equity. The Guarantor further agrees that the Guarantees shall continue to return to be effective or be reinstated, as the Companycase may be, the Guarantors if at any time payment, or any custodianpart thereof, trusteeof principal, liquidator premium, if any, or other similar official acting in relation to either interest on any Security is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the Guarantorsforegoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against the Guarantor by virtue hereof, upon the failure of the Company to pay the principal of, premium on, if any, or interest on any Security when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other obligation under the Securities, the Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid amount of such obligations under such Securities, (ii) accrued and unpaid interest on such obligations under such Securities (but only to the extent not prohibited by law) and (iii) all other monetary obligations with respect to such Securities of the Company to the Holders and the Trustee. The Guarantor will be subrogated to all rights of the Holders against the Company in respect of any amount paid by either the Guarantor pursuant to the Trustee or such Holderprovisions of the Guarantee; provided, this Subsidiary Guaranteehowever, to that the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of, premium on, if any, and interest on such Securities shall have been paid in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed herebyfull. Each The Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed with respect to the Securities hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed herebywith respect to such Securities, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofherein, such obligations the Guarantees (whether or not due and payable) shall forthwith become due and payable by the Guarantors Guarantor for the purpose purposes of this Subsidiary GuaranteeArticle 11. The Guarantors shall have Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the right to seek contribution from Trustee or any non-paying Guarantor so long as the exercise of such right does not impair the Holder in enforcing any rights of the Holders under the Guaranteethis Article 11.
Appears in 2 contracts
Samples: First Supplemental Indenture (Stanley Works), First Supplemental Indenture (Stanley Works)
Guarantees. Subject to this Article 10, each of the Guarantors herebyEach Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assignsassigns as primary obligor and not merely as a surety, irrespective on a senior basis, the performance and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, of all obligations of Terra Capital under this Indenture and the Notes whether for payment of principal of or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by the Guarantors being herein called the “Guaranteed Obligations”). The Guarantors will agree to pay, in addition to the amount stated above, any and all expenses (including reasonable counsel fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under the Guarantees. Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Guarantor and that such Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. Each Guarantor waives presentation to, demand of, payment from and protest to Terra Capital of any of the validity Guaranteed Obligations and enforceability also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Terra Capital or any other Person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (f) any change in the ownership of such Guarantor. Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Except as expressly set forth in Sections 8.2, 10.2 and 10.6, the obligations of the Company each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or thereundertermination for any reason, that: (a) the principal and premiumincluding any claim of waiver, if anyrelease, ofsurrender, alteration or compromise, and interestshall not be subject to any defense of setoff, if anycounterclaim, onrecoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes will or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of such Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity. Each Guarantor further agrees that its Guarantee herein shall continue to be promptly paid effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of Terra Capital or otherwise. In furtherance of the foregoing and not in full limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of Terra Capital to pay any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any Guaranteed Obligation, each Guarantor hereby promises to and interest on will, upon receipt of written demand by the overdue principal and premiumTrustee, if any offorthwith pay, and interestor cause to be paid, if anyin cash, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with an amount equal to the terms hereof and thereof; and sum of (bi) in case of any extension of time of payment or renewal of any Notes or any the unpaid amount of such other obligationsGuaranteed Obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally (ii) accrued and jointly and severally with each other Guarantor, to pay any and all expenses unpaid interest on such Guaranteed Obligations (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, but only to the extent theretofore discharged, shall be reinstated in full force not prohibited by law) and effect(iii) all other monetary Guaranteed Obligations of Terra Capital to the Holders and the Trustee. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Guaranteed Obligations guaranteed hereby until payment in full of all obligations guaranteed herebyGuaranteed Obligations. Each Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed Guaranteed Obligations hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteesuch Guarantor’s Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed herebyGuaranteed Obligations, and (y) in the event of any declaration of acceleration of such obligations Guaranteed Obligations as provided in Article 6 hereof6, such obligations the Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Guarantor for the purpose purposes of this Subsidiary GuaranteeSection. The Guarantors shall have Each Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the right to seek contribution from Trustee or any non-paying Guarantor so long as the exercise of such right does not impair the Holder in enforcing any rights of the Holders under the Guaranteethis Section.
Appears in 2 contracts
Samples: Indenture (Terra Industries Inc), Terra Investment Fund LLC
Guarantees. Subject to the provisions of this Article 10, each of the Guarantors hereby, jointly and severally, fully and unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations other Obligations of the Company Issuers hereunder or thereunder, that: (a) the principal of, premium and premiuminterest (including Additional Interest, if any, of, and interest, if any, on, ) on the Notes will shall be promptly paid in full when due, whether at maturitythe maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, premium and interestinterest (including Additional Interest, if any, on, ) on the Notes, if any, if to the extent lawful, and all other obligations Obligations of the Company Issuers to the Holders or the Trustee hereunder or thereunder will under this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms hereof of this Indenture and thereofthe Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturityStated Maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their to the fullest extent permitted by applicable law, its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereofof this Indenture and the Notes, the recovery of any judgment against the CompanyIssuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each To the fullest extent permitted by applicable law, each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyIssuers, any right to require a proceeding first against the CompanyIssuers, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuers or Guarantors, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company Issuers or the Guarantors, any amount paid by either any of them to the Trustee or such Holder, this Subsidiary Guaranteethese Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteethese Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guaranteethese Guarantees. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guarantees. Each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against an Issuer for liquidation, reorganization, should such Issuer become insolvent or make an assignment for the Guaranteebenefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuers’ assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. The Guarantee issued by any Guarantor shall be a general unsecured senior obligation of such Guarantor and shall be pari passu in right of payment with all existing and future Senior Indebtedness of such Guarantor, if any. Each payment to be made by a Guarantor in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature. Notwithstanding anything to the contrary, any direct or indirect parent company of the Company may guarantee the Notes and become a Guarantor hereunder.
Appears in 2 contracts
Samples: Supplemental Indenture (Atlas Energy Resources, LLC), Indenture (Atlas Resource Partners, L.P.)
Guarantees. Subject to this Article 10, each of the Guarantors herebyEach Guarantor, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated Guaranteed Party the due and delivered punctual payment by the Trustee and Rayonier (or TRS on Rayonier’s behalf pursuant to the Trustee and its successors and assigns, irrespective Contribution Agreement) of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal of and premium, if any, ofand interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Revenue Bonds, when and interest, if any, on, the Notes will be promptly paid in full when as due, whether at maturity, by acceleration, redemption upon one or more dates set for prepayment or otherwise, and interest on (b) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the overdue principal and premiumpendency of any bankruptcy, if insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of Rayonier to the Guaranteed Parties under any oftrust indenture, and interest, if any, onloan agreement or other related operative documents governing the Revenue Bonds (together, the Notes“Bond Documents”), if anywhether such amounts shall have accrued prior to, if lawful, and on or after the date of this Guarantee (all other the monetary obligations of referred to in the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; preceding clauses (a) and (b) being collectively called the “Rayonier Obligations”). Anything contained in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition this Guarantee to the foregoingcontrary notwithstanding, the obligations of each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective limited to a maximum aggregate amount equal to the greatest amount that would not render such obligations subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the validityUnited States Code or any provisions of applicable law (collectively, regularity the “Fraudulent Transfer Laws”), in each case after giving effect to all other liabilities of such Guarantor, contingent or enforceability otherwise, that are relevant under the Fraudulent Transfer Laws and after giving effect as assets to the value (as determined under the applicable provisions of the Notes or this Indenture, the absence Fraudulent Transfer Laws) of any action rights to enforce the samesubrogation, contribution, reimbursement, indemnity or similar rights of such Guarantor pursuant to (i) applicable law or (ii) any waiver or consent agreement providing for an equitable allocation among such Guarantor and other Affiliates of Rayonier of obligations arising under Guarantees by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed herebyparties. Each Guarantor further agrees thatthat the Rayonier Obligations may be extended or renewed, as between the Guarantorsin whole or in part, on the one handwithout notice to or further assent from it, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, that it will remain bound upon its guarantee notwithstanding any stay, injunction extension or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event renewal of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeRayonier Obligation.
Appears in 2 contracts
Guarantees. Subject to the provisions of this Article 1012, each of the Guarantors herebyGuarantor, jointly and severally, hereby irrevocably and unconditionally guarantees (each a "Guarantee"), on a senior basis, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: that (a) the principal and of, premium, if any, of, and interestinterest and Additional Interest, if any, on, on the Notes will shall be promptly duly and punctually paid in full when due, whether at maturity, by acceleration, redemption acceleration or otherwise, and interest on the overdue principal principal, and premium, if any ofany, and (to the extent permitted by law) interest on any interest, if any, on, on the Notes, if any, if lawful, Notes and all other obligations Obligations of the Company to the Holders or the Trustee hereunder or thereunder will under the Notes or under the Collateral Documents (including fees, expenses or other Obligations) shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to otherwise (collectively, the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary "Guarantee with respect to a GuarantorObligations"). Failing payment when due of any amount so guaranteed Guarantee Obligation or failing performance of any performance so guaranteed other Obligation of the Company to the Holders, for whatever reason, the Guarantors each Guarantor shall be jointly and severally obligated to pay pay, or to perform or to cause the performance of, the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under this Guarantee, and shall entitle the Trustee or the Holders to accelerate the Guarantee Obligations of each Guarantor hereunder in the same manner and to the same extent as the Company Obligations. Each Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations its Guarantee Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery entry of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, and relinquishes (a) any right to require the Trustee, the Holders or the Company (each, a proceeding first "Benefited Party") to proceed against the Company, protestthe Subsidiaries or any other Person or to proceed against or exhaust any security held by a Benefited Party at any time or to pursue any other remedy in any secured party's power before proceeding against such Guarantor; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) demand, protest and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional Indebtedness or Obligation or of any action or non-action on the part of the Guarantors, the Company, the Subsidiaries, any Benefited Party, any creditor of the Guarantors, the Company or the Subsidiaries or on the part of any other Person whomsoever in connection with any Obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Benefited Party, including but not limited to an election to proceed against the Guarantors for reimbursement; (e) any defense based upon any statute or rule of law which provides that the Obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Benefited Party's election in any proceeding instituted under the Bankruptcy Law of the application of Section 1111(b)(2) of the Bankruptcy Code; and all demands whatsoever and (g) any defense based on any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code. The Guarantors hereby covenant that this Subsidiary Guarantee the Guarantees shall not be discharged except by complete performance payment in full of all Guarantee Obligations, including the obligations contained in principal, premium, if any, and interest on the Notes and all other costs provided for under this Indenture, the Collateral Documents or as provided in Section 8.01. If any Holder or the Trustee is required by any court or otherwise to return to either the CompanyCompany or the Guarantors, the Guarantors or any custodian, trustee, liquidator trustee or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either the Company or the Guarantors to the Trustee or such Holder, this Subsidiary Guaranteethe Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor of the Guarantors agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed Guarantee Obligations hereby until payment in full of all obligations guaranteed herebysuch Obligations. Each Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteehereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed herebyGuarantee Obligations, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereof, such obligations Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Guarantor for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 2 contracts
Samples: Security Agreement and Fixture Filing (Trump Indiana Inc), Priority Intercreditor Agreement (Trump Indiana Inc)
Guarantees. Subject (a) For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, subject to this Article 10Section 11.07, each of the Guarantors, together with each Subsidiary of the Company which in accordance with Section 11.08 is required in the future to guarantee the Obligations of the Company and the Guarantors herebyunder the Securities, the Guarantees and this Indenture upon execution of a supplemental indenture, hereby jointly and severally, severally and irrevocably and unconditionally guarantees to the Trustee and to each Holder of a Note Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and or enforceability of this Indenture, the Notes Indenture or the obligations Securities or the Obligations of the Company hereunder or thereunderand the Guarantors under this Indenture, that: (ai) the principal and of, premium, if any, of, and any interest, if anyon the Securities (including, onwithout limitation, any interest that accrues after the Notes filing of a proceeding of the type described in Sections 6.01(g) and (h)) and any reasonable fees, expenses and other amounts owing under this Indenture will be promptly duly and punctually paid in full when due, whether at maturityStated Maturity, by acceleration, redemption call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase or otherwise, and interest on the overdue principal and premium, if any of, and (to the extent permitted by law) interest, if any, on, on the Notes, if any, if lawfulSecurities and any other amounts due in respect of the Securities, and all other obligations Obligations of the Company and the Guarantors to the Holders of the Securities under this Indenture and the Securities, whether now or the Trustee hereunder or thereunder hereafter existing, will be promptly paid in full or performed, all strictly in accordance with the terms hereof hereof, and thereofof the Securities; and (bii) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligationsObligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturityStated Maturity, by acceleration acceleration, call for redemption, upon Change of Control Offer, Asset Sale Offer, purchase or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing If payment is not made when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors each Guarantor shall be jointly and severally obligated to pay the same immediatelyindividually whether or not such failure to pay has become an Event of Default which could cause acceleration pursuant to Section 6.02. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations An Event of Default under this Indenture or the Securities shall constitute an Event of Default under this Guarantee, and shall entitle the Holders to accelerate the Obligations of each Guarantor hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce in the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in manner and to the event of insolvency or bankruptcy same extent as the Obligations of the Company, any right . This Guarantee is intended to require be a proceeding first against the Company, protest, notice senior unsecured obligation of each respective Guarantor and all demands whatsoever and covenant that this Subsidiary Guarantee shall not is intended to be discharged except by complete performance of the obligations contained superior to or pari passu in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of with all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, indebtedness and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration liabilities of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.that are not
Appears in 2 contracts
Samples: Nabors Industries Inc, Trend Drilling Co
Guarantees. Subject to this Article 10(a) For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the Guarantors hereby, hereby jointly and severally, severally and irrevocably and unconditionally guarantees to the Trustee and to each Holder of a Note Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and or enforceability of this Indenture, the Notes Indenture or the obligations Securities or the Obligations of the Company hereunder or thereunderand the Guarantors under this Indenture, that: (ai) the principal and of, premium, if any, ofand any interest, on the Securities (including, without limitation, contingent interest and interestany interest that accrues after the filing of a proceeding of the type described in Sections 6.01(e) and (f)), Liquidated Damages, if any, onon the Securities and any fees, the Notes expenses and other amounts owing under this Indenture will be promptly duly and punctually paid in full when due, whether at maturityStated Maturity, by acceleration, redemption call for redemption, upon a Purchase Notice, a Change in Control Offer, purchase or otherwise, and interest on the overdue principal and premium, if any of, and (to the extent permitted by law) interest, if any, on, on the Notes, if any, if lawfulSecurities and any other amounts due in respect of the Securities, and all other obligations Obligations of the Company and the Guarantors to the Holders of the Securities under this Indenture and the Securities, whether now or the Trustee hereunder or thereunder hereafter existing, will be promptly paid in full or performed, all strictly in accordance with the terms hereof and thereofof the Securities; and (bii) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligationsObligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturityStated Maturity, by acceleration acceleration, call for redemption, upon a Purchase Notice, a Change in Control Offer, purchase or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing If payment is not made when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors each Guarantor shall be jointly and severally obligated to pay the same immediatelyindividually whether or not such failure to pay has become an Event of Default which could cause acceleration pursuant to Section 6.02. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations An Event of Default under this Indenture or the Securities shall constitute an Event of Default under this Guarantee, and shall entitle the Holders to accelerate the Obligations of each Guarantor hereunder shall be unconditional, irrespective in the same manner and to the same extent as the Obligations of the validity, regularity Company. This Guarantee is intended to be superior to or enforceability pari passu in right of payment with all indebtedness of the Notes or this Indenture, the absence Guarantors and each Guarantor's Obligations are independent of any action to enforce the same, any waiver or consent by any Holder Obligation of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same Company or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeGuarantor.
Appears in 2 contracts
Samples: Indenture (Yellow Corp), Yellow Roadway Corp
Guarantees. (a) Subject to this Article 1013, each of the Guarantors hereby, jointly and severally, fully and unconditionally guarantees guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or held thereby and the obligations of the Company hereunder or and thereunder, that: (ai) the principal of and premium, if any, of, and interest, if any, on, interest on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturitythe Maturity Date, by acceleration, redemption upon redemption, upon prepayment or otherwise, and interest on the overdue principal of and premium, if any of, and interest, if any, on, (to the extent permitted by law) interest on the Notes, if any, if lawfuland the Settlement Amounts upon exchange will be promptly paid and/or delivered in full when due upon exchange, and all other payment obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms hereof and thereof; and (bii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturitythe Maturity Date, by acceleration acceleration, upon redemption, upon prepayment or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be will be, jointly and severally severally, obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee An Event of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Default with respect to any provisions hereof or thereofthe Notes under this Indenture shall constitute an event of default under the Guarantees, and shall entitle the recovery Holders to accelerate the obligations of any judgment against the Company, any action to enforce Guarantors hereunder in the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in manner and to the event of insolvency or bankruptcy same extent as the obligations of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 2 contracts
Samples: Supplemental Indenture (Carnival PLC), Indenture (Carnival PLC)
Guarantees. Subject to this Article 10, each Each of the Guarantors hereby, jointly and severally, unconditionally guarantees guarantees, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assignsNoteholder, irrespective of the validity and enforceability of this IndentureAgreement, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal of and premium, if any, of, premium and interest, if any, on, interest on the Notes will shall be promptly paid in full when due, subject to any applicable grace period, whether at maturityStated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of (and any premium, if any of, ) and interest, if any, on, interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee Noteholders hereunder or thereunder will shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturityStated Maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due due, subject to any applicable grace period, of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this IndentureAgreement, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Noteholder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that covenants that, subject to Section 13.04, this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this IndentureAgreement. If any Holder or the Trustee Noteholder is required by any court or otherwise to return to the CompanyCompany or Guarantors, the Guarantors or any custodianCustodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either the Company or the Guarantor to the Trustee or such HolderNoteholder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effecteffect as to such amount only. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders Noteholders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the TrusteeNoteholders, on the other hand, (xa) the maturity Maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof Section 11 for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, hereby and (yb) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofSection 11, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders Noteholders under the GuaranteeGuarantees.
Appears in 2 contracts
Samples: Purchase Agreement (American Coin Merchandising Inc), Purchase Agreement (American Coin Merchandising Inc)
Guarantees. Subject to this Article 10(a) For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the Guarantors, together with each Subsidiary of the Company which in accordance with Section 11.08 is required in the future to guarantee the Obligations of the Company and the Guarantors herebyunder the Securities, the Guarantees and this Indenture upon execution of a supplemental indenture, hereby jointly and severally, severally and irrevocably and unconditionally guarantees to the Trustee and to each Holder of a Note Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and or enforceability of this Indenture, the Notes Indenture or the obligations Securities or the Obligations of the Company hereunder or thereunderand the Guarantors under this Indenture, that: (ai) the principal and of, premium, if any, of, and any interest, if anyon the Securities (including, onwithout limitation, any interest that accrues after the Notes filing of a proceeding of the type described in Sections 6.01(g) and (h)) and any fees, expenses and other amounts owing under this Indenture will be promptly duly and punctually paid in full when due, whether at maturityStated Maturity, by acceleration, redemption call for redemption, upon a Change of Control Offer, Asset Sale Offer, purchase or otherwise, and interest on the overdue principal and premium, if any of, and (to the extent permitted by law) interest, if any, on, on the Notes, if any, if lawfulSecurities and any other amounts due in respect of the Securities, and all other obligations Obligations of the Company and the Guarantors to the Holders of the Securities under this Indenture and the Securities, whether now or the Trustee hereunder or thereunder hereafter existing, will be promptly paid in full or performed, all strictly in accordance with the terms hereof and thereofof the Securities; and (bii) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligationsObligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturityStated Maturity, by acceleration acceleration, call for redemption, upon Change of Control Offer, Asset Sale Offer, purchase or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing If payment is not made when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors each Guarantor shall be jointly and severally obligated to pay the same immediatelyindividually whether or not such failure to pay has become an Event of Default which could cause acceleration pursuant to Section 6.02. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations An Event of Default under this Indenture or the Securities shall constitute an Event of Default under this Guarantee, and shall entitle the Holders to accelerate the Obligations of each Guarantor hereunder shall be unconditional, irrespective in the same manner and to the same extent as the Obligations of the validity, regularity Company. This Guarantee is intended to be superior to or enforceability pari passu in right of payment with all Indebtedness of the Notes or this Indenture, the absence Guarantors and each Guarantor s Obligations are independent of any action to enforce the same, any waiver or consent by any Holder Obligation of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same Company or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeGuarantor.
Appears in 2 contracts
Samples: Supplemental Indenture (Grey Wolf Inc), Di Industries Inc
Guarantees. Subject to the provisions of this Article 1011, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations Obligations of the Company Issuers hereunder or thereunder, that: (a) the principal of, premium, interest and premiumLiquidated Damages, if any, of, and interest, if any, on, on the Notes will shall be promptly paid in full when due, whether at maturitythe maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal and of, premium, if any of, interest and interestLiquidated Damages, if any, on, on the Notes, if any, if lawful, and all other obligations Obligations of the Company Issuers to the Holders or the Trustee hereunder or thereunder will under this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms hereof of this Indenture and thereofthe Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturityStated Maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereofof this Indenture and the Notes, the recovery of any judgment against the CompanyIssuers, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorSubsidiary Guarantor. Each To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyIssuers, any right to require a proceeding first against the CompanyIssuers, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee the Guarantees shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuers or Subsidiary Guarantors, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company Issuers or the Subsidiary Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guaranteethese Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteethese Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby, and (y) in the event 101 of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Guaranteethese Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guaranteethese Guarantees.
Appears in 2 contracts
Samples: Indenture (El Paso Energy Partners Lp), First Reserve Gas LLC
Guarantees. Subject to this Article 10, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee Security and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes Securities or the obligations of the Company hereunder or thereunder, that: (a) the principal and of, premium, if any, of, and interest, if any, on, on the Notes Securities will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, on the NotesSecurities, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in the case of any extension of time of payment or renewal of any Notes Securities or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes Securities and this IndentureIndenture or pursuant to Section 10.04. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof6, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 2 contracts
Samples: Supplemental Indenture (E Trade Financial Corp), Supplemental Indenture (E Trade Financial Corp)
Guarantees. Subject to this Article 10Except as otherwise contemplated by Section 1403 below, each of the Guarantors hereby, jointly and severally, Guarantor hereby unconditionally guarantees to each Holder of a Note Security authenticated and delivered by the Trustee Trustee, and to the Trustee on behalf of such Holder, the due and its successors and assigns, irrespective punctual payment of the validity principal of and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal any premium and premiuminterest on and any Additional Amounts, if any, ofon such Security and the due and punctual payment of any sinking fund or analogous payments provided for pursuant to the terms of such Security, when and interest, if any, on, as the Notes will be promptly paid in full when duesame shall become due and payable, whether at maturitythe Stated Maturity, by declaration of acceleration, redemption call for redemption, repayment at the option of the Holder or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of such Security and of this Indenture, and any and all other amounts owed by the extension or renewalCompany to the Trustee under the terms of this Indenture. In case of the failure of the Company punctually to make any such payment, the Guarantor hereby agrees to cause such payment to be made punctually when and as the same shall become due and payable, whether at stated maturitythe Stated Maturity or by declaration of acceleration, by acceleration call for redemption, repayment at the option of the Holder or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred as if such payment were made by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a GuarantorCompany. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each The Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes such Security or this Indenture, the absence of any action to enforce the same, any waiver or consent by any the Holder of such Security or by the Notes Trustee with respect to any provisions hereof thereof or thereofof this Indenture, the recovery obtaining of any judgment against the Company, Company or any action to enforce the same or any other circumstance circumstances which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each The Guarantor hereby waives the benefits of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, protest or notice with respect to such Security or the indebtedness evidenced thereby or with respect to any sinking fund payment required pursuant to the terms of such Security and all demands whatsoever whatsoever, and covenant covenants that this Subsidiary Guarantee shall the Guarantees will not be discharged in respect of such Security except by complete performance of the obligations contained in such Security and in this guarantee. The Guarantor hereby agrees that, in the Notes event of a default in payment of principal (or premium, if any) or interest or Additional Amounts, if any, on such Security, or a default in any sinking fund or analogous payment referred to therein, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Security, on the terms and conditions set forth in this Indenture, directly against the Guarantor to enforce the Guarantees without first proceeding against the Company. If The Guarantor shall be subrogated to all rights of the Holders of the Securities of a particular series against the Company in respect of any Holder or amounts paid by the Trustee is required by any court or otherwise to return Guarantor on account of such Security pursuant to the Companyprovisions of the Guarantees or this Indenture; provided, however, that the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, Guarantor shall be reinstated in full force and effect. Each Guarantor agrees that it shall -------- ------- not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation in relation to until the Holders in respect principal of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that(and premium, as between the Guarantorsif any) and interest and Additional Amounts, if any, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration all Securities of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors series issued hereunder shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guaranteebeen paid in full.
Appears in 2 contracts
Samples: Thermo Electron Corp, Thermo Electron Corp
Guarantees. Subject to the provisions of this Article 10, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations other Obligations of the Company Issuers hereunder or thereunder, that: (a) that the principal and premium, if any, of, premium and interest, if any, on, interest on the Notes will shall be promptly paid in full when due, whether at maturitythe maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, premium and interest, if any, on, interest on the Notes, if any, if lawful, to the extent lawful and all other obligations Obligations of the Company Issuers to the Holders or the Trustee hereunder or thereunder will under this Indenture and the Notes shall be promptly paid in full or performedfull, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantorand the Notes. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereofof this Indenture and the Notes, the recovery of any judgment against the CompanyIssuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a guarantorSubsidiary Guarantor. Each To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyIssuers, any right to require a proceeding first against the CompanyIssuers, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuers or Subsidiary Guarantors, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company Issuers or the Subsidiary Guarantors, any amount paid by either any of them to the Trustee or such Holder, this Subsidiary Guaranteethese Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteethese Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Guaranteethese Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guaranteethese Guarantees.
Appears in 2 contracts
Samples: First Supplemental Indenture (Penn Virginia Resource Partners L P), Supplemental Indenture (Penn Virginia Resource Partners L P)
Guarantees. SECTION 1201. Guarantee. Subject to this Article 10Twelve, each of to the Guarantors herebyextent provided pursuant to Section 301 hereof, jointly the Guarantor hereby fully and severallyunconditionally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of of, this Indenture, the Notes Securities or the obligations of the Company hereunder or thereunder, that: (ai) the principal and of, premium, if any, of, and interest, if any, on, interest on the Notes will Securities shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interestpremium, if any, on, and interest on the NotesSecurities, if any, if lawfullawful (subject in all cases to any applicable grace period provided herein), and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will shall be promptly paid in full or performedfull, all in accordance with the terms hereof and thereof; and (bii) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors Guarantor shall be jointly and severally obligated to pay the same immediately. Each The Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors Guarantor hereby agree that their agrees that, to the maximum extent permitted under applicable law, its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorthe Guarantor. Each Subject to Section 507, the Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes Securities and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the GuarantorsGuarantor, any amount paid by either any of them to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each The Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each The Guarantor further agrees that, as between the GuarantorsGuarantor, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof Five for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such obligations as provided in Article 6 Five hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors Guarantor for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 2 contracts
Samples: NYSE Holdings LLC, NYSE Holdings LLC
Guarantees. Subject The Guarantors (as defined in the Indenture (the “Indenture”) referred to in the Note upon which this Article 10, notation is endorsed and each hereinafter referred to as a “Guarantor”) have unconditionally guaranteed on a senior secured basis (such guarantee by each Guarantor being referred to herein as the “Guarantee”) (i) the due and punctual payment of the Guarantors hereby, jointly principal of and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, interest on the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration, redemption acceleration or otherwise, otherwise and interest on the overdue principal and premiumprincipal, if any ofany, and interest on any interest, if any, on, to the Notes, if any, if extent lawful, of the Notes and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; set forth in of the Indenture and (bii) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise. In addition Each Guaranty will be limited to an amount not to exceed the maximum amount that can be guaranteed by such Guarantor after giving effect to all of its other contingent and fixed liabilities without rendering such Guaranty, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally. The obligations of the undersigned to the foregoing, each Guarantor also agrees, unconditionally Holders of the Notes and jointly to the Trustee pursuant to the Guarantee and severally with each other Guarantor, the Indenture are expressly set forth in Article X of the Indenture and reference is hereby made to pay any the Indenture for the precise terms of the Guarantee and all expenses (includingother of the provisions of the Indenture to which this Guarantee relates. No past, without limitationpresent or future stockholder, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due director, officer, employee or incorporator, as such, of any amount so guaranteed or any performance so guaranteed for whatever reason, of the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective have any liability for any obligation of the validity, regularity or enforceability of Guarantors under the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by Indenture or for any court or otherwise to return to the Companyclaim based on, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofby reason of, such obligations (whether or not due their creation. Each Holder of a Note by accepting a Note waives and payable) shall forthwith become due releases all such liability. The waiver and payable by release are part of the Guarantors consideration for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights issuance of the Holders under the Guarantee.Guarantees. [INSERT SUBSIDIARY GUARANTOR SIGNATURE BLOCKS AS APPROPRIATE]
Appears in 2 contracts
Samples: Webcraft LLC, Webcraft LLC
Guarantees. Subject Buyer recognizes that Seller and certain of its Subsidiaries have provided, and prior to this Article 10the Closing may provide, each credit support to the Business, the Purchased Assets or the Purchased Entities pursuant to guarantees, letters of credit, bonds, sureties and other credit support or assurances provided by Seller or its Subsidiaries in support of any obligation of the Guarantors herebyBusiness that are listed on Schedule 6.14 of the Disclosure Letter (the “Business Guarantees”). Buyer and Seller shall use their commercially reasonable efforts to obtain from the respective beneficiary, jointly in form and severallysubstance reasonably satisfactory to Seller, unconditionally guarantees on or before the Closing Date, valid and binding written releases of Seller and its Subsidiaries, as applicable, from any Liability, whether arising before, on or after the Closing Date, under any Business Guarantees to each Holder the extent relating to the Business, the Purchased Assets or the Assumed Liabilities, which release shall be effective as of the Closing, including, in the case of Buyer and its Subsidiaries, as applicable, by providing substitute guarantees, furnishing letters of credit, instituting escrow agreements, posting surety or performance bonds or making other arrangements as the beneficiary may reasonably request. If any Business Guarantee has not been released as of the Closing Date, then Buyer and Seller shall continue to use their commercially reasonable efforts after the Closing to cause as promptly as practicable the complete and unconditional release of Seller and its Subsidiaries under such Business Guarantee to the extent relating to the Business, the Purchased Assets or the Assumed Liabilities. Notwithstanding anything to the contrary herein, the Parties acknowledge and agree that at any time on or after the Closing Date, Seller and its Subsidiaries may, in such Person’s sole discretion, take any action to terminate, obtain release of or otherwise limit their Liability under any and all outstanding Business Guarantees; provided that no such action results in a breach of any Contract or Liability (or acceleration of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective Liability) of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes Buyer or any of such other obligationsits Affiliates. Buyer shall, that same will and hereby agrees to, indemnify and hold harmless Seller and its Subsidiaries from and after the Closing for any amounts required to be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay under any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, Business Guarantees to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation exclusively relating to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity operation or ownership of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for Business or the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction Purchased Assets after the Closing Date or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeAssumed Liabilities.
Appears in 2 contracts
Samples: Purchase Agreement (Welbilt, Inc.), Purchase Agreement (PENTAIR PLC)
Guarantees. Subject to this Article 10X, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and of, premium, if any, of, and interest, if any, on, interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interestpremium, if any, on, and interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in the case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Subsidiary Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this IndentureIndenture or pursuant to Section 10.04. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Subsidiary Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof VI for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofVI, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-non paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 2 contracts
Samples: Supplemental Indenture (E Trade Financial Corp), Supplemental Indenture (E Trade Financial Corp)
Guarantees. Subject This Section 1201 and Section 1202 apply to this Article 10, each the Securities of any series of any Subsidiary Issuer to the extent that the form of the Guarantors hereby, jointly Guarantees to be endorsed on such Securities is not otherwise established as contemplated by Section 3.01. The Guarantor hereby fully and severally, unconditionally guarantees to each Holder of a Note Security of each series issued by a Subsidiary Issuer, authenticated and delivered by the Trustee the due and punctual payment of the principal (including any amount due in respect of any Original Issue Discount Security) of and any premium and interest on such Security, and the due and punctual payment of any sinking fund payments provided for pursuant to the Trustee terms of such Security, when and its successors as the same shall become due and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when duepayable, whether at maturitythe Stated Maturity, by declaration of acceleration, redemption call for redemption, early repayment or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwisesuch Security and this Indenture. In addition to the foregoing, each The Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor hereby agrees that this is a guarantee in the event of payment and not a guarantee an Event of collection. The Guarantors hereby agree that their Default its obligations hereunder shall be as if it were a principal debtor and not merely a surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of the validity, regularity or enforceability any Security of the Notes any series or this Indenture, the absence of any action failure to enforce the sameprovisions of any Security of any series or this Indenture, any waiver waiver, modification or consent indulgence granted to the applicable Subsidiary Issuer with respect thereto, by any the Holder of the Notes with respect to any provisions hereof or thereof, the recovery Security of any judgment against series of such Subsidiary Issuer or the CompanyTrustee, any action to enforce the same or any other circumstance circumstances which might may otherwise constitute a legal or equitable discharge or defense of a guarantorsurety or Guarantor; provided, however, that, notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of the Guarantor, increase the principal amount of any Security of a Subsidiary Issuer or the Interest rate thereon or increase any premium payable upon redemption thereof. Each The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency merger or bankruptcy of the Companyapplicable Subsidiary Issuer, any right to require a proceeding first against such Subsidiary Issuer, the Companybenefit of discussion, protest, protest or notice with respect to any Security of such Subsidiary Issuer or the indebtedness evidenced thereby or with respect to any sinking fund payment required pursuant to the terms of such Security issued under this Indenture and all demands whatsoever whatsoever, and covenant covenants that this Subsidiary Guarantee shall will not be discharged with respect to such Security except by complete performance payment in full of the obligations contained principal thereof and any premium and interest thereon or as provided in the Notes and this IndentureArticle Four or Section 801. If any Holder or the Trustee is required by any court or otherwise to return to the Companyany Subsidiary Issuer, the Guarantors Guarantor, or any custodian, trustee, liquidator or other similar official acting in relation to either the Company such Issuer or the Guarantors, Guarantor any amount paid by either such Issuer or the Guarantor to the Trustee or such Holder, this Subsidiary Guarantee, Guarantee to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each The Guarantor further agrees that, as between the GuarantorsGuarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity Maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 Five hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby. The Guarantor also agrees, to pay any and all reasonable costs and expenses (yincluding reasonable attorneys' fees and expenses) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable incurred by the Guarantors for the purpose of Trustee or any Holders in enforcing any rights under this Subsidiary Guarantee. The Guarantors Guarantee hereby waives any right of set-off which the Guarantor may have against the Holder of any Security of a Subsidiary Issuer in respect of any amounts which are or may become payable by such Holder to such Subsidiary Issuer. The Guarantor shall have the right be subrogated to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the all rights of the Holders of any series of Securities and the Trustee against the applicable Subsidiary Issuer in respect of any amounts paid to such Holders and the Trustee by the Guarantor pursuant to the provisions of the Guarantees; provided, however, that the Guarantor shall not be entitled to enforce or to receive any payments arising out of or based upon, such right of subrogation until the principal of, premium, if any, and interest, if any, on all of the Securities of such series shall have been paid in full. No past, present or future stockholder, officer, director, employee or incorporator of the Guarantor shall have any personal liability under the GuaranteeGuarantees set forth in this Section 1201 by reason of his or its status as such stockholder, officer, director, employee or incorporator. The Guarantees set forth in this Section 1201 shall not be valid or become obligatory for any purpose with respect to a Security until the certificate of authentication on such Security shall have been signed by or on behalf of the Trustee.
Appears in 2 contracts
Guarantees. Subject to this Article 10Each Subsidiary Guarantor hereby fully, each of the Guarantors herebyunconditionally and irrevocably Guarantees, as primary obligor and not merely as surety, jointly and severallyseverally with each other Subsidiary Guarantor, unconditionally guarantees to each Holder of a Note authenticated the Securities the full and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, and interest on of the overdue principal and premium, if any of, and interestpremium, if any, on, and interest (including Additional Interest) on the Notes, if any, if lawful, Securities and all other obligations of the Company under this Indenture (including interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Holders Company or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) (all the Trustee hereunder foregoing being hereinafter collectively called the “Guaranteed Obligations”). Each Subsidiary Guarantor further agrees (to the extent permitted by law) that the Guaranteed Obligations may be extended or thereunder renewed, in whole or in part, without notice or further assent from it, and that it will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of remain bound under this Indenture notwithstanding any extension of time of payment or renewal of any Notes Guaranteed Obligation. Each payment to be made by a Subsidiary Guarantor in respect of its Subsidiary Guarantee shall be made without set off, counterclaim, reduction or diminution of any of such other obligations, that same will be promptly paid kind or nature. To evidence its Subsidiary Guarantee set forth in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoingthis Section 11.1, each Subsidiary Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor hereby agrees that this is Indenture (or a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder supplemental indenture to this Indenture) shall be unconditional, irrespective executed on behalf of the validity, regularity or enforceability such Subsidiary Guarantor by an Officer of the Notes or such Subsidiary Guarantor. Each Subsidiary Guarantor hereby agrees that its Subsidiary Guarantee set forth in this Indenture, Section 11.1 shall remain in full force and effect notwithstanding the absence of the endorsement of any action notation of such Subsidiary Guarantee on the Securities. If an Officer whose signature is on this Indenture no longer holds that office at the time the Trustee authenticates the Securities, the Subsidiary Guarantee shall be valid nevertheless. Upon execution of a supplemental indenture to enforce the same, any waiver or consent this Indenture by any Holder Subsidiary Guarantor in the form of Exhibit C hereto, the Subsidiary Guarantee set forth in this Indenture and such supplemental indenture shall be deemed duly delivered, without any further action by any Person, on behalf of such Subsidiary Guarantor. Following the Issue Date, the delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Notes with respect to any provisions hereof or thereof, Subsidiary Guarantees set forth in this Indenture on behalf of the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorSubsidiary Guarantors. Each Subsidiary Guarantor hereby waives diligence, presentmentpresentation to, demand of paymentpayment from and protest to the Company of any of the Guaranteed Obligations, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, Company and also waives notice and all demands whatsoever and covenant of protest for nonpayment. Each Subsidiary Guarantor waives (to the extent permitted by law) notice of any default under the Securities or the Guaranteed Obligations. Each Subsidiary Guarantor further agrees that this its Subsidiary Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Guaranteed Obligations. The Subsidiary Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company or any action to enforce the same. Except as set forth under Section 11.2, the obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Guaranteed Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the Guaranteed Obligations of the Subsidiary Guarantors herein shall not be discharged except or impaired or otherwise affected by complete performance (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Securities, the Subsidiary Guarantees or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the obligations contained in the Notes and terms or provisions of this Indenture. If , the Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee is required for the Guaranteed Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Subsidiary Guarantor, (f) any change in the ownership of the Company; (g) by any court default, failure or otherwise delay, willful or otherwise, in the performance of the Guaranteed Obligations, or (h) by any other act or thing or omission or delay to return to the Company, the Guarantors do any other act or thing which may or might in any custodian, trustee, liquidator manner or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to extent vary the Holders in respect risk of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, or would otherwise operate as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity a discharge of the obligations guaranteed hereby may be accelerated Subsidiary Guarantor as provided in Article 6 hereof for the purposes a matter of this Subsidiary Guarantee, notwithstanding any stay, injunction law or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guaranteeequity.
Appears in 2 contracts
Samples: Indenture (Deluxe Corp), Deluxe Corp
Guarantees. Subject to this Article 10Thirteen, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note Security authenticated and delivered by the Trustee and to the Trustee (acting in any capacity hereunder) and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes Securities or the obligations Obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes Securities will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the NotesSecurities, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee (acting in any capacity hereunder) hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturityStated Maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes Securities and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 Five hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 Five hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 2 contracts
Samples: Indenture (Sonic Automotive Inc), Sonic Automotive Inc
Guarantees. (a) Subject to this Article 1013, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or held thereby and the obligations of the Company hereunder or and thereunder, that: (a) the principal of and premium, if any, of, and interest, if any, on, interest on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturitythe Maturity Date, by acceleration, redemption upon repurchase or otherwise, and interest on the overdue principal of and premium, if any of, and interest, if any, on, (to the extent permitted by law) interest on the Notes, if any, if lawful, and all other payment obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturitythe Maturity Date, by acceleration acceleration, upon repurchase or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee An Event of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Default with respect to any provisions hereof or thereofthe Notes under this Indenture shall constitute an event of default under the Guarantees, and shall entitle the recovery Holders to accelerate the obligations of any judgment against the Company, any action to enforce Guarantors hereunder in the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in manner and to the event of insolvency or bankruptcy same extent as the obligations of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 2 contracts
Samples: Indenture (Whiting Petroleum Corp), Supplemental Indenture (On Semiconductor Corp)
Guarantees. Subject With respect to each series of Securities to which this Article 1012 is expressly made applicable, each of the Guarantors hereby, jointly Guarantor hereby unconditionally and severally, unconditionally irrevocably guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: assigns (ai)(a) the full and punctual payment of principal and premium, if any, of, and interest, if any, on, interest on the Notes will be promptly paid in full Securities of such Holder when due, whether at maturity, by acceleration, by redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other monetary obligations of the Company to the Holders or and the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with under this Indenture and the terms hereof and thereof; Securities and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company under this Indenture and the Securities and (ii) in the case of any extension of time of payment or renewal of any Notes Securities or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewalrenewal (all of the foregoing being hereinafter collectively called the “Guarantees”). The Guarantor waives presentation to, whether at stated maturitydemand of, payment from and protest to the Company of any of the Guarantees and also waives notice of protest for nonpayment. The Guarantor waives notice of any default under the Securities or the Guarantees. The Guarantees hereunder shall not be affected by acceleration (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Securities or any other agreement or otherwise. In addition to ; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the foregoingterms or provisions of this Indenture, each Guarantor also agrees, unconditionally and jointly and severally with each the Securities or any other Guarantor, to pay agreement; (d) the release of any and all expenses (including, without limitation, counsel fees and expenses) incurred security held by any Holder or the Trustee under this Indenture for the Guarantees or any of them; (e) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Guarantees or (f) any change in enforcing any rights under a Subsidiary Guarantee with respect to a the ownership of the Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each The Guarantor further agrees that this is its Guarantees hereunder constitute a guarantee of payment payment, performance and compliance when due (and not a guarantee of collection). The Guarantors Guarantor hereby agree agrees that their its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or failure to enforce the provisions of the validity, regularity or enforceability of the Notes any Security or this Indenture, or any waiver, modification, consent or indulgence granted to the absence Company with respect thereto (unless the same shall also be provided the Guarantor), by the Holder of any action to enforce Security or the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereofTrustee, the recovery of any judgment against the Company, Company or any action to enforce the same same, or any other circumstance circumstances which might may otherwise constitute a legal or equitable discharge of a surety or guarantor; provided that, notwithstanding the foregoing, no such waiver, modification, indulgence or circumstance shall, without the consent of the Guarantor, increase the principal amount of a Security or the interest rate thereon or increase any premium payable upon redemption thereof. The Guarantees shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of a guarantor. Each Guarantor hereby waives diligencesetoff, presentmentcounterclaim, demand of payment, filing of claims with a court in the event of insolvency recoupment or bankruptcy termination whatsoever or by reason of the Companyinvalidity, any right to require a proceeding first against illegality or unenforceability of the CompanyGuarantees or otherwise. Without limiting the generality of the foregoing, protest, notice and all demands whatsoever and covenant the Guarantor covenants that this Subsidiary Guarantee the Guarantees shall not be discharged except or impaired or otherwise affected by complete performance the failure of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any court waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of the Guarantor or would otherwise operate as a discharge of the Guarantor as a matter of law or equity. The Guarantor further agrees that the Guarantees shall continue to return to be effective or be reinstated, as the Companycase may be, the Guarantors if at any time payment, or any custodianpart thereof, trusteeof principal, liquidator premium, if any, or other similar official acting in relation to either interest on any Security is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the Guarantorsforegoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against the Guarantor by virtue hereof, upon the failure of the Company to pay the principal of, premium on, if any, or interest on any Security when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other obligation under the Securities, the Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid amount of such obligations under such Securities, (ii) accrued and unpaid interest on such obligations under such Securities (but only to the extent not prohibited by law) and (iii) all other monetary obligations with respect to such Securities of the Company to the Holders and the Trustee. The Guarantor will be subrogated to all rights of the Holders against the Company in respect of any amount paid by either the Guarantor pursuant to the Trustee or such Holderprovisions of the Guarantee; provided, this Subsidiary Guaranteehowever, to that the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of, premium on, if any, and interest on such Securities shall have been paid in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed herebyfull. Each The Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed with respect to the Securities hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteeherein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed herebywith respect to such Securities, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofherein, such obligations the Guarantees (whether or not due and payable) shall forthwith become due and payable by the Guarantors Guarantor for the purpose purposes of this Subsidiary GuaranteeArticle 12. The Guarantors shall have Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the right to seek contribution from Trustee or any non-paying Guarantor so long as the exercise of such right does not impair the Holder in enforcing any rights of the Holders under the Guaranteethis Article 12.
Appears in 1 contract
Guarantees. Subject to this Article 1011, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interestinterest and Special Interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interestinterest and Special Interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee. The Subsidiary Guarantees represent full and unconditional guarantees by the Guarantors on an unsecured and senior subordinated basis of the payment of principal of and interest and Special Interest, if any, on the Notes. Upon conversion of the Notes pursuant to Article 13, the Subsidiary Guarantees will be deemed to be released and extinguished.
Appears in 1 contract
Samples: Supplemental Indenture (Asbury Automotive Group Inc)
Guarantees. Subject to this Article 10The Guarantors, each of the Guarantors herebyas primary obligors and not merely as sureties, hereby jointly and severally, unconditionally and irrevocably guarantees subject to Article 14, on a senior subordinated basis, the Notes and obligations of the Co-Issuers hereunder and thereunder, and guarantees to each Holder of a Note authenticated and delivered by the Trustee Trustee, and to the Trustee for itself and its successors and assigns, irrespective on behalf of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereundersuch Holder, that: (a1) the principal of (and premium, if any) and interest on, or Special Interest in respect of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturityStated Maturity, by accelerationacceleration or otherwise (including the amount that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Law), redemption or otherwisetogether with interest on the overdue principal, if any, and interest on the any overdue principal and premium, if any of, and interest, if any, on, to the Notes, if any, if extent lawful, and all other obligations of the Company Co-Issuers to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b2) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturityStated Maturity, by acceleration or otherwise. In addition , subject, however, in the case of clauses (1) and (2) above, to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture limitation set forth in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediatelySection 1304 hereof. Each Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, any release of any other Guarantor, the recovery of any judgment against the CompanyIssuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each Guarantor hereby waives (to the extent permitted by law) the benefits of diligence, presentment, demand of for payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyIssuer, any right to require a proceeding first against the CompanyIssuer or any other Person, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary the Guarantee of such Guarantor shall not be discharged as to any Note except by complete performance of the obligations contained in such Note, this Indenture and such Guarantee. Each Guarantor acknowledges that the Notes Guarantee is a guarantee of payment, performance and compliance when due and not of collection. Each of the Guarantors hereby agrees that, in the event of a default in payment of principal (or premium, if any) or interest on such Note, whether at its Stated Maturity, by acceleration, purchase or otherwise, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms and conditions set forth in this Indenture, directly against each of the Guarantors to enforce such Guarantor’s Guarantee without first proceeding against the Issuer or any other Guarantor. Each Guarantor agrees that if, after the occurrence and during the continuance of an Event of Default, the Trustee or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the Maturity of the Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy with respect to the Notes, such Guarantor shall pay to the Trustee for the account of the Holder, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuer or any Guarantor, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company Issuer or the Guarantorsany Guarantor, any amount paid by either any of them to the Trustee or such Holder, this Subsidiary Guaranteethe Guarantee of each of the Guarantors, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantorseach Guarantor, on the one hand, and the Holders and the Trustee, Trustee on the other hand, (x1) subject to this Article Twelve, the maturity Maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 Five hereof for the purposes of this Subsidiary Guarantee, the Guarantee of such Guarantor notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y2) in the event of any declaration of acceleration of such obligations obligation as provided in Article 6 Five hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors each Guarantor for the purpose of this Subsidiary Guaranteethe Guarantee of such Guarantor. Each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes, whether as a “voidable preference”, “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. The Guarantors shall have form of Notation of Guarantee to be executed on each Note by each Guarantor is attached as Exhibit B hereto. The obligations of each Guarantor to the right Holders and to seek contribution from any non-paying Guarantor so long as the exercise Trustee pursuant to the Guarantee of such Guarantor and this Indenture are expressly subordinate and subject in right does not impair of payment to the rights prior payment in full of all Senior Indebtedness of such Guarantor, to the Holders under extent and in the Guaranteemanner provided in Article 14 hereof.
Appears in 1 contract
Guarantees. Subject to this Article 10, each of the The Guarantors hereby, jointly and severally, hereby unconditionally guarantees guarantee to each Holder of a Note of the series known as the Company’s 5.125% Guaranteed Notes due 2013 (the “2013 Notes”) and the Company’s 6.250% Guaranteed Notes due 2033 (the “2033 Notes” and, together with the 2013 Notes, the “Notes”), authenticated and delivered by the Trustee Trustee, jointly and to severally the Trustee due and its successors and assigns, irrespective punctual payment of the validity principal (including any amount due in respect of original issue discount) of and enforceability of this Indentureany premium and interest (including any Special Interest) on such Note (and any Additional Amounts payable in respect thereof), when and as the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal same shall become due and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when duepayable, whether at maturitythe Stated Maturity, by declaration of acceleration, call for redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of such Note and of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediatelyIndenture. Each Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their its obligations hereunder shall be as if it were a principal debtor and not merely a surety, and shall be absolute and unconditional, irrespective of the validityof, regularity and shall be unaffected by, any invalidity, irregularity or enforceability unenforceability of the Notes or this the Indenture, the absence of any action failure to enforce the sameprovisions of the Notes or the Indenture, any waiver waiver, modification or consent indulgence granted to the Company with respect thereto, by any the Holder of the Notes with respect to any provisions hereof or thereofthe Trustee, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance circumstances which might may otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; provided, however, that, notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of each Guarantor, increase the principal amount of the Notes or the interest rate thereon or increase any premium payable upon redemption thereof. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency merger or bankruptcy of the Company, any right to require a proceeding first against the Company, protestthe benefit of discussion, protest or notice with respect to the Note or the indebtedness evidenced thereby and all demands whatsoever whatsoever, and covenant covenants that this Subsidiary its Guarantee shall will not be discharged with respect to any Note except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed herebythe principal thereof and any premium and interest (including any Special Interest) thereon (and any Additional Amounts in respect thereof) or as provided in Article Four, Section 802 or Article Thirteen of the Existing Indenture and Section 3.3 of this First Supplemental Indenture. Each Guarantor further agrees that, as between the Guarantorssuch Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity Maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof Five of the Existing Indenture for the purposes of this Subsidiary its Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) . Each Guarantor shall be subrogated to all rights of each Holder of the Notes against the Company in the event respect of any declaration amounts paid to such Holder by such Guarantor pursuant to the provisions of acceleration its Guarantee; provided, however, that such Guarantor shall not be entitled to enforce, or to receive any payments arising out of such obligations as provided in Article 6 hereofor based upon, such obligations right of subrogation until the principal of and any premium and interest (whether or not due including any Special Interest) on all the Notes of the same series and payableof like tenor (and any Additional Amounts payable in respect thereof) shall forthwith become due and payable by have been paid in full. No past, present or future stockholder, officer, director, employee or incorporator of any of the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have any personal liability under the right Guarantees set forth in this Section 3.1 by reason of his or its status as such stockholder, officer, director, employee or incorporator. The Guarantees set forth in this Section 3.1 shall not be valid or become obligatory for any purpose with respect to seek contribution from any non-paying Guarantor so long as a Note until the exercise certificate of authentication on such right does not impair the rights Note shall have been signed by or on behalf of the Holders under the GuaranteeTrustee.
Appears in 1 contract
Guarantees. Subject Each Guarantor shall, on the date it executes and delivers a Guarantee hereunder, have the full corporate power, authority and capacity to this Article 10, each of the Guarantors hereby, jointly execute and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee deliver such Guarantee and to the Trustee perform all of its obligations to be performed thereunder; all corporate and its successors other acts, conditions and assigns, irrespective things required to be done and performed or to have occurred prior to such execution and delivery to constitute such Guarantee as a valid and legally binding obligation of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all such Guarantor enforceable in accordance with its terms shall have been done and performed and shall have occurred in due compliance with all applicable Laws; on the terms hereof date of such execution and thereof; delivery, the execution, delivery and performance of such Guarantee by such Guarantor will not (bi) in case violate any provision of any extension of time of payment or renewal of any Notes Law or any provision of the charter or bylaws of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses or (ii) result in a breach of, a default under (including, without limitation, counsel fees and expenses) incurred by any event which with notice or lapse of time, or both, would constitute a breach of or a default under), or the Trustee under this Indenture in enforcing creation of, any rights under a Subsidiary Guarantee with respect to a Lien on the properties or assets of such Guarantor. Failing payment when due of any amount so guaranteed , the Borrower or any performance so guaranteed for whatever reasonSubsidiary under any Contractual Obligation to which such Guarantor or the Borrower or any Subsidiary is a party or by which the properties or assets of such Guarantor, the Guarantors Borrower or any Subsidiary may be bound or affected, except where such event could not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect; on the date of such execution and delivery, each Guarantee executed and delivered by a Guarantor shall be jointly constitute legal, valid, binding and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their unconditional obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice executing and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return delivering it to the CompanyLenders hereunder, the Guarantors or any custodianenforceable in accordance with its terms, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, except to the extent theretofore dischargedthat the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization or similar Laws affecting the enforcement of creditors' rights generally or by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at Law); and the foregoing representations and warranties of the Obligors shall be reinstated in full force and effect. Each Guarantor agrees deemed for all purposes to have been made on each date when a Guarantee is delivered hereunder with respect solely to that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, Guarantee and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of issuing such right does not impair the rights of the Holders under the Guarantee.
Appears in 1 contract
Guarantees. Subject Each Guarantor shall, on the date it executes and ---------- delivers a Guarantee hereunder, have the full corporate power, authority and capacity to this Article 10, each of the Guarantors hereby, jointly execute and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee deliver such Guarantee and to the Trustee perform all of its obligations to be performed thereunder; all corporate and its successors other acts, conditions and assigns, irrespective things required to be done and performed or to have occurred prior to such execution and delivery to constitute such Guarantee as a valid and legally binding obligation of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all such Guarantor enforceable in accordance with its terms shall have been done and performed and shall have occurred in due compliance with all applicable Laws; on the terms hereof date of such execution and thereof; delivery, the execution, delivery and performance of such Guarantee by such Guarantor will not (bi) in case violate any provision of any extension of time of payment or renewal of any Notes Law or any provision of the charter or bylaws of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses or (ii) result in a breach of, a default under (including, without limitation, counsel fees and expenses) incurred by any event which with notice or lapse of time, or both, would constitute a breach of or a default under), or the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due creation of any amount so guaranteed Lien on the properties or assets of such Guarantor, the Borrower or any performance so guaranteed for whatever reason, Subsidiary of the Guarantors shall be jointly and severally obligated Borrower under any Contract to pay which such Guarantor or the same immediately. Each Guarantor agrees that this Borrower or the Borrower is a guarantee party or by which the properties or assets of payment such Guarantor or the Borrower may be bound or affected; on the date of such execution and not delivery, each Guarantee executed and delivered by a guarantee of collection. The Guarantors hereby agree that their Guarantor shall constitute legal, valid, binding and unconditional obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice executing and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return delivering it to the CompanyLenders hereunder, the Guarantors or any custodianenforceable in accordance with its terms, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, except to the extent theretofore dischargedthat the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors' rights generally or by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law); and the foregoing representations and warranties of the Borrower shall be reinstated in full force and effect. Each Guarantor agrees deemed for all purposes to have been made on each date when a Guarantee is delivered hereunder with respect solely to that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, Guarantee and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of issuing such right does not impair the rights of the Holders under the Guarantee.
Appears in 1 contract
Samples: Senior Subordinated Credit Agreement (Petersen Holdings LLC)
Guarantees. Subject to this Article 10, each Each of the Guarantors hereby, jointly AOLTW and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor Comcast agrees that it shall not be entitled to any right of subrogation in relation to cause the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees thatAOLTW Partner and the Trust I Partner, as between the Guarantorsapplicable (and any direct or indirect transferee of such Partner), on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity to comply with all of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for of such Partner hereunder. Comcast further agrees that it will continue to own directly or indirectly a majority of the purposes equity and other ownership interests of this Subsidiary Guaranteeeach Trust I Partner (or, notwithstanding any stayif such Trust I Partner is a statutory trust, injunction Comcast (A) will continue to own directly or indirectly a majority of the equity and other ownership interests of the Person that directly owns all of the beneficial or other prohibition preventing ownership interests of such acceleration in respect statutory trust and (B) shall cause one Person to own all of the obligations guaranteed herebybeneficial or other ownership interests of such statutory trust); provided that this sentence shall not apply to any Trust I Partner that became a Trust I Partner as a result of a Permitted Transfer from a transferor who was not, at the time of such Permitted Transfer, an Affiliate of such Trust I Partner; provided, further, that Comcast may Dispose of all of its equity interests in the Trust I Partner or any Parent thereof in connection with a sale or transfer of all or substantially all of its broadband business if the transferee thereof (and, if such transferee is a Subsidiary of another Person, then such transferee's Ultimate Parent (a "Broadband Transferee Ultimate Parent")) agrees in writing to succeed to the benefits of and be bound by all of the terms and conditions binding upon or to the benefit of Comcast under this Agreement and the Partnership Interest Sale Agreement. TWC will continue to own, directly or indirectly, a majority of the equity of the Partnership through and until the third anniversary of the date hereof and thereafter shall not take any action that would result in TWC ceasing to own, directly or indirectly, a majority of the equity of the Partnership unless it provides at least five (5) days' notice to the Trust I Partners; provided, however, that TWC shall not, without the consent of the Trust I Partners holding a majority of the Trust I Partnership Interest, take any such action, unless such action has previously been commenced in accordance with this Section 10.12, during any period commencing on the date that any Trust I Partner initiates its right to Dispose of its Partnership Interest pursuant to Section 3 or 4 of the Partnership Interest Sale Agreement through and until the earlier of (i) the closing of such Disposition in accordance with Section 3 or 4, as applicable, of the Partnership Interest Sale Agreement and (yii) in the event of any declaration of acceleration of such obligations final date upon which Section 3 or 4, as provided in Article 6 hereofapplicable, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders Partnership Interest Sale Agreement requires such a closing to take place (provided that TWC shall not take or permit to be taken any such action during any period of delay in such closing which results directly from a breach by AOLTW or TWC of its obligations under the GuaranteePartnership Interest Sale Agreement).
Appears in 1 contract
Samples: Aol Time Warner Inc
Guarantees. Subject to this Article 10, each of the Guarantors hereby, jointly and severally, Guarantor hereby unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or and thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, (or Accreted Value) on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, of the Notes, if any, if lawful, and all other obligations of the Company to the Holders or and the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors each Guarantor shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors Each Guarantor hereby agree agrees that their its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorsuch Guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary its Note Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors any Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantorsany Guarantor, any amount paid by either any of them to the Trustee or such Holder, this Subsidiary Guaranteethe Note Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 1 contract
Guarantees. Subject The Purchaser shall use best efforts to this Article 10, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) deliver on or prior to the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations Closing Date but effective as of the Company to the Holders Closing, Guaranty/Bond Replacements for each Guaranty or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereofBond listed on SCHEDULE 5.8; and (b) procure, after the Closing, Guaranty/Bond Replacements for any Guaranty or Bond not listed on SCHEDULE 5.8 and issued or obtained in the Ordinary Course of Business prior to the Closing Date, with such Guaranty/Bond Replacements to be so obtained as promptly as reasonably practicable after the Purchaser learns of the same; provided that, in the case of any extension of time of payment or renewal this clause (b): (1) the procurement of any Notes or such Guaranty/Bond Replacement shall not constitute a waiver of any breach of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred this Agreement by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, Sellers; and (2) the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee Purchaser shall not be discharged except required to procure any such Guaranty/Bond Replacement following the Closing to the extent that the same will result in more than $1,000 of cost or expense to the Purchaser, unless the Sellers agree to reimburse the Purchaser for such cost or expense. Pending such procurement as described in the foregoing clause (b) (including if such procurement is not required by complete performance sub-clause (2) of the foregoing clause (b)), the Purchaser shall indemnify the Sellers and each such Non-Company Affiliate against all and any liabilities, losses, costs, charges, proceedings, actions, claims, demands or expenses arising out of or in connection with any such Guaranty or Bond. As used herein, the term "GUARANTY/BOND REPLACEMENT" means any guaranties, bonds, consideration or other undertakings, as the case may be, needed to replace and terminate any Guaranty or Bond and so as to obtain the complete and unconditional release of the Sellers and any Non-Company Affiliates from all obligations contained in connection with each such Guaranty or Bond. As used herein, the Notes and this Indenture. If term "GUARANTY OR BOND" means any Holder guaranty, keepwell agreement, comfort letter, or the Trustee is required by any court or otherwise to return similar undertaking issued prior to the Closing Date to or for the benefit of, or any letter of credit, surety bond, performance bond, customs bond, excise bond or similar undertaking obtained prior to the Closing Date by, any Seller or any Non-Company Affiliate to support or facilitate business transactions by a Company, the Guarantors US Business, the UK Business or the German Business, and any security furnished by a Seller or any custodiansuch Non-Company Affiliate in connection therewith. As used herein, trusteethe term "NON-COMPANY AFFILIATE" means any Affiliate of any Seller or of any Company, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or but such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it term shall not be entitled to include any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeCompany.
Appears in 1 contract
Guarantees. Subject to this Article 10XI, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note Security authenticated and delivered by the Trustee Trustee, to each holder of shares of Common Stock issued upon conversion of a Security and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes Securities or the obligations of the Company hereunder or thereunder, that: (a) the principal and of, premium, if any, of, and interest or additional interest, if any, on, on the Notes Securities will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and premium, if any ofany, and interest or additional interest, if any, on, on the Notes, if anySecurities or such shares, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder or under the Registration Rights Agreement will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes Securities, any such shares or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors For purposes of this Article XI, “Holder” shall be deemed to include any holder of shares of Common Stock issued upon conversion of a Security or issued pursuant to Article III. Subject to this Article XI, each Guarantor hereby agree agrees that their its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Notwithstanding the foregoing, each Guarantor shall, with respect to any claim, action or proceeding against such Guarantor relating to this Indenture, the Securities or such Guarantor’s Subsidiary Guarantee, be entitled to assert a defense of prior payment or performance by such Guarantor of the obligations that are the subject of such claim, action or proceeding. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes Securities, this Indenture and the Registration Rights Agreement. Nothing in the foregoing sentence shall affect the obligations contained in Section 6.06 of this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by the Company or any Guarantor either to the Trustee or to such Holder, this then each Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof this Indenture for the purposes of this the Subsidiary GuaranteeGuarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofthis Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this the Subsidiary GuaranteeGuarantees. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee. Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys' fees and expenses) incurred by the Trustee in enforcing any rights under this Article XI.
Appears in 1 contract
Samples: Supplemental Indenture (Five Star Quality Care Inc)
Guarantees. Subject to the provisions of this Article Section 10, each of the Guarantors hereby, jointly and severallyGuarantor hereby fully, unconditionally guarantees and irrevocably guarantees, as primary obligor and not merely as surety, on a joint and several senior secured basis, to each Holder of a Note authenticated the Notes, and delivered by the Trustee the due and to the Trustee and its successors and assignspunctual payment, irrespective of the validity and enforceability principal of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any) and interest (including, ofin case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and interestincluding any additional interest required to be paid according to the terms of the Notes), if any, onon the Notes, when and as the Notes will be promptly paid in full when duesame shall become due and payable, whether at maturityStated Maturity, by upon redemption, upon acceleration, redemption upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, of this Indenture and all other obligations of the Company with respect to the Holders Notes to any Holder or the Trustee hereunder or thereunder thereunder. Each Note Guarantee will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and secured by first priority security interests (bsubject to Permitted Liens) in case of any extension of time of payment or renewal of any Notes or any of the Collateral owned by such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that the Guarantor Obligations shall rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is subordinate to the Guarantor Obligations, in which case the obligations of the Guarantors under the Note Guarantees shall rank senior in right of payment to such other Indebtedness, and except for claims of creditors that are mandatorily preferred by law, in which case the obligations of the Guarantors under the Note Guarantees shall rank junior in right of payment to such claims. To evidence its Note Guarantee set forth in this Section 10.1, each Guarantor hereby agrees that this Indenture (or a supplement thereto) shall be executed on behalf of such Guarantor by an Officer of such Guarantor. Each Guarantor hereby agrees that its Note Guarantee set forth in this Section 10.1 shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes. If an Officer whose signature is on this Indenture (or a supplement thereto) no longer holds that office at the time the Trustee authenticates the Note, the Note Guarantee shall be valid nevertheless. Each Guarantor further agrees (to the extent permitted by law) that the Guarantor Obligations may be extended or renewed, in whole or in part, without notice or further assent from it, and that it shall remain bound under this Section 10.1 notwithstanding any extension or renewal of any Guarantor Obligation. Each Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Guarantor Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Guarantor Obligations. Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby ) and waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not any resort be discharged except had by complete performance any Holder to any security held for payment of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeObligations.
Appears in 1 contract
Samples: Allegiant Travel CO
Guarantees. Subject to the provisions of this Article 1012, each of the Guarantors herebySubsidiary Guarantor, jointly and severallyseverally with each other Subsidiary Guarantor, hereby fully and unconditionally guarantees Guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal of, and premiumpremium and interest and Additional Interest, if any, of, and interest, if any, on, on the Notes will shall be promptly duly and punctually paid in full when due, whether at maturity, by acceleration, redemption acceleration or otherwise, and interest on the overdue principal principal, and premium, if any ofany, and (to the extent permitted by law) interest on any interest, if any, on, on the Notes, if any, if lawful, Notes and all other obligations Obligations of the Company to the Holders or the Trustee hereunder or thereunder will under the Notes or under the Collateral Documents (including fees, expenses or other Obligations) shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to otherwise (collectively, the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary "Guarantee with respect to a GuarantorObligations"). Failing payment when due of any amount so guaranteed Guarantee Obligation or failing performance of any performance so guaranteed other Obligation of the Company to the Holders, for whatever reason, the Guarantors each Subsidiary Guarantor shall be jointly and severally obligated to pay pay, or to perform or to cause the performance of, the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under this Guarantee, and shall entitle the Trustee or the Holders to accelerate the Guarantee Obligations of each Subsidiary Guarantor hereunder in the same manner and to the same extent as the Company Obligations. Each Subsidiary Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations its Guarantee Obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery entry of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorSubsidiary Guarantor. Each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, and relinquishes: (a) any right to require the Trustee, the Holders or the Company (each, a proceeding first "Benefitted Party") to proceed against the Company, protestthe Subsidiaries or any other Person or to proceed against or exhaust any security held by a Benefitted Party at any time or to pursue any other remedy in any secured party's power before proceeding against such Subsidiary Guarantor; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Benefitted Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) demand, protest and notice of any kind (except as expressly required by this Indenture), including but not limited to notice of the existence, creation or incurring of any new or additional Indebtedness or Obligation or of any action or non-action on the part of the Subsidiary Guarantors, the Company, the Subsidiaries, any Benefitted Party, any creditor of the Subsidiary Guarantors, the Company or the Subsidiaries or on the part of any other Person whomsoever in connection with any Obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Benefitted Party, including but not limited to an election to proceed against the Subsidiary Guarantors for reimbursement; (e) any defense based upon any statute or rule of law which provides that the Obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Benefitted Party's election in any proceeding instituted under the Bankruptcy Law of the application of Section 1111(b)(2) of the Bankruptcy Code; and all demands whatsoever and (g) any defense based on any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code. The Subsidiary Guarantors hereby covenant that this Subsidiary Guarantee the Guarantees shall not be discharged except by complete performance payment in full of all Guarantee Obligations, including the obligations contained in principal, premium, if any, and interest on the Notes and all other costs provided for under this Indenture, the Collateral Documents or as provided in Section 8.01. If any Holder or the Trustee is required by any court or otherwise to return to either the CompanyCompany or the Subsidiary Guarantors, the Guarantors or any custodian, trustee, liquidator trustee or other similar official acting in relation to either the Company or the Subsidiary Guarantors, any amount paid by either the Company or the Subsidiary Guarantors to the Trustee or such Holder, this Subsidiary Guaranteethe Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor of the Subsidiary Guarantors agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed Guarantee Obligations hereby until payment in full of all obligations guaranteed herebysuch Obligations. Each Subsidiary Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteehereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed herebyGuarantee Obligations, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereof, such obligations Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Subsidiary Guarantor for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 1 contract
Guarantees. Subject to this Article 10, each of the Guarantors herebyEach Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assignsassigns as primary obligor and not merely as a surety, irrespective on an unsecured senior basis the performance and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, of all obligations of Bucyrus under this Indenture and the Securities whether for payment of principal of or interest on the Securities, expenses, indemnification or otherwise (all such obligations guaranteed by the Guarantors being herein called the "Guaranteed Obligations"). The Guarantors will agree to pay, in addition to the amount stated above, any and all expenses (including reasonable counsel fees and expenses) incurred by the Trustee or the Holders in enforcing any rights under the Guarantees. Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Guarantor and that such Guarantor will remain bound under this Article 10 notwithstanding any extension or renewal of any Guaranteed Obligation. Each Guarantor waives presentation to, demand of, payment from and protest to Bucyrus of any of the validity Guaranteed Obligations and enforceability also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Securities or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against Bucyrus or any other Person under this Indenture, the Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (f) any change in the ownership of such Guarantor. Each Guarantor further agrees that its Subsidiary Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations. Except as expressly set forth in Sections 8.2, 10.2 and 10.6, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the Company hereunder invalidity, illegality or thereunderunenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, that: (a) the principal and premiumobligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of such Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if anyat any time payment, ofor any part thereof, of any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of Bucyrus or otherwise. In furtherance of the foregoing and interestnot in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, if any, on, upon the Notes will be promptly paid in full failure of Bucyrus to pay any Guaranteed Obligation when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any Guaranteed Obligation, each Guarantor hereby promises to and interest on will, upon receipt of written demand by the overdue principal and premiumTrustee, if any offorthwith pay, and interestor cause to be paid, if anyin cash, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with an amount equal to the terms hereof and thereof; and sum of (bi) in case of any extension of time of payment or renewal of any Notes or any the unpaid amount of such other obligationsGuaranteed Obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally (ii) accrued and jointly and severally with each other Guarantor, to pay any and all expenses unpaid interest on such Guaranteed Obligations (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, but only to the extent theretofore discharged, shall be reinstated in full force not prohibited by law) and effect(iii) all other monetary Guaranteed Obligations of Bucyrus to the Holders and the Trustee. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Guaranteed Obligations guaranteed hereby until payment in full of all obligations guaranteed herebyGuaranteed Obligations. Each Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed Guaranteed Obligations hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteesuch Guarantor's Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed herebyGuaranteed Obligations, and (y) in the event of any declaration of acceleration of such obligations Guaranteed Obligations as provided in Article 6 hereof6, such obligations the Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Guarantor for the purpose purposes of this Subsidiary GuaranteeSection. The Guarantors shall have Each Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys' fees) incurred by the right to seek contribution from Trustee or any non-paying Guarantor so long as the exercise of such right does not impair the Holder in enforcing any rights of the Holders under the Guaranteethis Section.
Appears in 1 contract
Samples: Bucyrus International Inc
Guarantees. Subject to this Article 10, each of the Guarantors herebyEach Guarantor hereby unconditionally and irrevocably guarantees, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee on behalf of the Holders and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: assigns (a) the due and punctual payment of principal and of, premium, if any, of, and interest, if any, on, interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, by redemption or otherwise, and interest on all other monetary obligations of the overdue principal and premium, if any of, and interest, if any, onIssuers under this Indenture, the Notes, if any, if lawful, Notes and the Registration Rights Agreement and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company to Issuers under this Indenture, the Holders Notes and the Registration Rights Agreement (all the foregoing being hereinafter collectively called the "Guaranteed Obligations"). Each Guarantor further agrees that the Guaranteed Obligations may be extended or the Trustee hereunder renewed, in whole or thereunder in part, without notice or further assent from such Guarantor and that such Guarantor will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of remain bound under this Article 10 notwithstanding any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediatelyGuaranteed Obligation. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency in- solvency or bankruptcy of the Companyany Issuer, any right to require a proceeding first against the CompanyIssuer, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee whatsoever. Each Guarantor waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of each Guarantor hereunder shall not be discharged except affected by complete performance (a) the failure of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by to assert any court claim or otherwise demand or to return to the Company, the Guarantors enforce any right or any custodian, trustee, liquidator or other similar official acting in relation to either remedy against the Company or any other Person under this Indenture, the GuarantorsNotes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Guaranteed Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (f) except as provided in Section 10.06, any amount paid change in the ownership of such Guarantor. Except as expressly set forth in Sections 10.02 and 10.06, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by either to reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of such HolderGuarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of, premium, if any, or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of any Issuer or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, upon the failure of any Issuer to pay the principal of, premium, if any, or interest on any obligation under the Notes or this Subsidiary GuaranteeIndenture when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other obligation under the Notes or this Indenture, each Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid amount of such Guaranteed Obligations, (ii) accrued and unpaid interest on such Guaranteed Obligations (but only to the extent theretofore discharged, shall be reinstated in full force not prohibited by law) and effect(iii) all other monetary Guaranteed Obligations of the Issuers to the Holders and the Trustee. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Guaranteed Obligations guaranteed hereby until payment in full of all obligations guaranteed herebyGuaranteed Obligations. Each Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed Guaranteed Obligations hereby may be accelerated as provided in Article Section 6 hereof for the purposes of this Subsidiary Guaranteesuch Guarantor's Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations under the Notes or this Indenture guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofSection 6, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Guarantor for the purpose purposes of this Subsidiary GuaranteeSection. The Guarantors shall have Each Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys' fees) incurred by the right to seek contribution from Trustee or any non-paying Guarantor so long as the exercise of such right does not impair the Holder in enforcing any rights of the Holders under the Guaranteethis Article 10.
Appears in 1 contract
Guarantees. Subject to this Article 10The Parent Guarantor hereby unconditionally guarantees (the "Guarantee", each and together with the other guarantees of the Guarantors herebySecurities, if any, the "Guarantees"), jointly and severallyseverally with each other Guarantor of the Securities of that series, unconditionally guarantees if any, to each Holder of a Note such Securities authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes such Securities or the obligations of the Company hereunder or thereunder, that: (ai) the due and punctual payment of the principal of and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when dueany premium or interest on such Securities, whether at maturityMaturity or on an Interest Payment Date, by acceleration, redemption pursuant to an offer to purchase such Securities or otherwise, and interest on the overdue principal and premium, if any of, of and interest, if any, on, the Notes, if anyon such Securities, if lawful, and all other obligations of the Company to the Holders of such Securities or the Trustee hereunder or thereunder will shall be promptly paid in full or performedfull, all in accordance with the terms hereof and thereof; thereof including all amounts payable to the Trustee under Section 6.07 hereof, and (bii) in case of any extension of time of payment or renewal of any Notes such Securities or any of such other obligations, that the same will shall be promptly paid in full when due or to be performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition If the Company fails to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay make any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors Parent Guarantor of the Securities of that series shall be obligated, jointly and severally obligated with each other such Guarantor, if any, to pay the same immediately. Each The Parent Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their its obligations hereunder shall be continuing, absolute and unconditional, irrespective of of, and shall be unaffected by, the validity, regularity or enforceability of the Notes or Securities, this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Securities or the Trustee with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorsuch Guarantor. Each The Parent Guarantor hereby waives diligence, presentment, demand of payment, demand of performance, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, the benefit of discussion, protest, notice and all demands demand whatsoever and covenant covenants that this Subsidiary its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes Securities guaranteed by such Guarantee, in this Indenture and in this IndentureArticle Fifteen. If any Holder of Securities of a series guaranteed hereby or the Trustee is required by any court or otherwise to return to the CompanyCompany or the Parent Guarantor of such Securities, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the GuarantorsParent Guarantor, any amount paid by either the Company or the Parent Guarantor of such Securities to the Trustee or such Holder, this Subsidiary GuaranteeArticle Fifteen, to the extent theretofore dischargeddischarged with respect to the Guarantee of such Securities, shall be reinstated in full force and effect. Each The Parent Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Securities of a series guaranteed hereby by the Parent Guarantor in respect of any obligations guaranteed hereby by such Guarantee until payment in full of all obligations guaranteed herebysuch obligations. Each The Parent Guarantor further agrees that, as between the GuarantorsParent Guarantor, on the one hand, and the Holders of Securities of a series guaranteed hereby by the Parent Guarantor and the Trustee, Trustee on the other hand, (xi) the maturity of the obligations guaranteed hereby by such Guarantee may be accelerated as provided in Article 6 Five hereof for the purposes of this Subsidiary the Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, hereby and (yii) in the event of any declaration of acceleration of such obligations as provided in Article 6 Five hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors Parent Guarantor, jointly and severally with any other Guarantor of such Securities, if any, for the purpose of this Subsidiary Article Fifteen. In addition, without limiting the foregoing, upon the effectiveness of an acceleration under Article Five, the Trustee may make a demand for payment on the Securities under the Guarantee thereof not discharged. With respect to the Guarantee. The Guarantors , the Parent Guarantor shall have the right be subrogated to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the all rights of the Holders under Holder of any Securities guaranteed hereby by such Guarantee against the Company in respect of any amounts paid to such Holder by the Parent Guarantor pursuant to the provisions of such Guarantee; provided that the Parent Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of and interest on all such Securities shall have been paid in full. The Guarantee provided in this Section 15.01 shall not be valid or become obligatory for any purpose with respect to a Security until the certificate of authentication on such Security shall have been signed by the Trustee or any duly appointed agent.
Appears in 1 contract
Samples: L 3 Communications Corp
Guarantees. Subject to this Article 108, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, this First Supplemental Indenture, the Notes or the obligations of the Company Issuers hereunder or thereunder, that: (a) the principal and of premium, if any, of, and interest, if any, on, interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and premium, if any of, and interest, if any, on, interest on the Notes, if any, if lawful, and all other obligations of the Company Issuers to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration pursuant to Section 6.02 hereof or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors Each Guarantor hereby agree agrees that their its obligations hereunder with regard to this Note Guarantee shall be joint and several, unconditional, irrespective of the validity, regularity validity or enforceability of the Notes or the obligations of the Issuers under the Indenture, this First Supplemental Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the CompanyIssuers or any other obligor with respect to the Indenture, this First Supplemental Indenture, the Notes or the obligations of the Issuers under the Indenture, this First Supplemental Indenture or the Notes, any action to enforce the same or any other circumstance circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each Guarantor hereby further, to the extent permitted by law, waives diligenceand relinquishes all claims, presentmentrights and remedies accorded by applicable law to guarantors and agrees not to assert or take advantage of any such claims, demand of paymentrights or remedies, filing of claims with a court in the event of insolvency or bankruptcy of the Company, including but not limited to: (a) any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance any of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under or the Guarantee.Issuers (each a "Benefited Party"),
Appears in 1 contract
Samples: Metricom Inc / De
Guarantees. Subject to this Article 10, each Each of the Guarantors hereby, jointly AOLTW and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor AT&T agrees that it shall not be entitled to any right of subrogation in relation to cause the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees thatAOLTW Partner and the MediaOne Partner, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other handapplicable, (xand any direct or indirect transferee of such Partner) the maturity to comply with all of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect Partner hereunder. AT&T further agrees that it will continue to own directly and indirectly a majority of the obligations guaranteed herebyequity and other ownership interests of each MediaOne Partner (or, if such MediaOne Partner is a Disposition Trust, of a Person that owns all of the ownership interests of in such Disposition Trust) until such time as such MediaOne Partner shall have Disposed of its Partnership Interests to any Person who is not an Affiliate of such MediaOne Partner in accordance with Section 3.1; provided that AT&T may Dispose of all of its equity interests in the MediaOne Partner or any Parent thereof in connection with a sale or transfer of all or substantially all of its broadband business if the transferee thereof (and, if such transferee is a Subsidiary of another Person, then such transferee's Ultimate Parent) agrees in writing to succeed to the benefits of and be bound by all of the terms and conditions binding upon or to the benefit of AT&T under this Agreement and the Partnership Interest Sale Agreement. TWC will continue to own, directly or indirectly, a majority of the equity of the Partnership through and until the third anniversary of the date hereof and thereafter shall not take any action that would result in TWC ceasing to own, directly or indirectly, a majority of the equity of the Partnership unless it provides at least five (5) days' notice to the MediaOne Partners; provided, however, that TWC shall not, without the consent of the MediaOne Partners holding a majority of the MediaOne Partnership Interest, take any such action, unless such action has previously been commenced in accordance with this Section 10.12, during any period commencing on the date that any MediaOne Partner initiates its right to Dispose of its Partnership Interest pursuant to Section 3 or 4 of the Partnership Interest Sale Agreement through and until the earlier of (i) the closing of such Disposition in accordance with Section 3 or 4, as applicable, of the Partnership Interest Sale Agreement and (yii) in the event of any declaration of acceleration of such obligations final date upon which Section 3 or 4, as provided in Article 6 hereofapplicable, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders Partnership Interest Sale Agreement requires such a closing to take place (provided that TWC shall not take or permit to be taken any such action during any period of delay in such closing which results directly from a breach by AOLTW or TWC of its obligations under the GuaranteePartnership Interest Sale Agreement).
Appears in 1 contract
Samples: Aol Time Warner Inc
Guarantees. Subject to this Article Section 10, each of the Guarantors hereby, jointly and severally, fully and unconditionally guarantees to each Holder of a Note authenticated guarantees, as primary obligor and delivered by the Trustee and not merely as surety, to the Trustee and its successors and assignsCollateral Agent for the benefit of the Secured Parties, irrespective of the validity and enforceability of this IndentureAgreement, the Notes Loans or the obligations of the Company hereunder or thereunderBorrower Obligations, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will Borrower Obligations shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and premium, if any of, and interest, if any, on, interest on the NotesLoans, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will Borrower Obligations shall be promptly paid in full or performed, all in accordance with the terms hereof and thereofhereof; and (b) in case of any extension of time of payment or renewal of any Notes Loans or any of such other obligationsBorrower Obligations, that same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this IndentureLoan Documents, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Administrative Agent with respect to any provisions hereof or thereof, the recovery of any judgment against the CompanyBorrower, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives (to the extent permitted by law) diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyBorrower, any right to require a proceeding first against the CompanyBorrower, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary Guarantee shall not be discharged except pursuant to Section 9.20, and any rights of orden and excusión it may have by complete performance virtue of law or otherwise, as provided in Articles 2812 (two thousand eight hundred and twelve), 2814 (two thousand eight hundred and fourteen) and 2816 (two thousand eight hundred and sixteen) of the obligations contained in Mexican Federal Civil Code, and its relative articles of the Notes and this Indenturecivil code of any state of Mexico. If This Section 10 shall continue to be effective or be reinstated, as the case may be, if at any Holder time any payment of any of the Obligations is rescinded or the Trustee is required must otherwise be returned by any court or otherwise to return to the Company, the Guarantors Secured Parties or any custodianother Person upon the insolvency, trusteebankruptcy or reorganization of the Borrower or otherwise, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or all as though such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, payment had not been made. Each Guarantee shall be reinstated remain in full force and effecteffect and continue to be effective should any petition be filed by or against the Borrower for liquidation or reorganization, should the Borrower become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Borrower’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Obligations are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Obligations, whether as a “voidable preference”, “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Obligations shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. In case any provision of this Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. This Guarantee issued by any Guarantor shall be a general senior obligation of such Guarantor and shall be equal in right of payment with all existing and future Senior Indebtedness of such Guarantor, including the 2025 Note Guarantees and the 2026 Note Guarantees of such Guarantor. 168 Each payment to be made by a Guarantor in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature. Each Guarantor, the Administrative Agent and each Lender hereby confirms that it is the intention of all such parties that the Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Guarantee. To effectuate the foregoing intention, the Administrative Agent, each Lender and the Guarantors hereby irrevocably agree that the obligations of each Guarantor shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Section 10, result in the obligations of such Guarantor under its Guarantee not constituting unlawful financial assistance, a fraudulent conveyance or fraudulent transfer under applicable law. Each Guarantor agrees that it makes a payment under its Guarantee shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until upon payment in full of all obligations guaranteed hereby. Each Obligations under this Agreement to a contribution from each other Guarantor further agrees that, as between the Guarantors, in an amount equal to such other Guarantor’s pro rata portion of such payment based on the one handrespective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP. Any Guarantee of a Guarantor incorporated under the laws of England and Wales shall not apply to the extent that it would result in such Guarantee constituting unlawful financial assistance within the meaning of sections 678 or 679 of the Companies Act 2006. Any Guarantee of a Guarantor incorporated under the laws of Ireland shall not apply to the extent that it would result in such Guarantee constituting financial assistance as prohibited by section 82 of the Irish Companies Act 2014. No Guarantor will exercise any rights that it may now or hereafter acquire against any Loan Party or any other guarantor that arise from the existence, payment, performance or enforcement of such Guarantor’s obligations under this Section 10, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Secured Parties against any Loan Party or any other guarantor or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from any Loan Party or any other guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right, unless and until the Termination Conditions have been satisfied. If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence at any time prior to the later of the date the Termination Conditions are satisfied and the Holders Maturity Date, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the TrusteeSecured Parties to be credited and applied to the Obligations and all other amounts payable under this Section 10, on whether matured or unmatured, in accordance with the terms of this Agreement, or to be held as Collateral for any Obligations or other handamounts payable under this Section 10 thereafter arising. If (i) any Guarantor shall make payment to the Secured Parties of all or any part of the Obligations, (xii) the maturity Termination Conditions have been satisfied and (iii) the Maturity Date shall have occurred, the Secured Parties will, at such Guarantor’s request and expense, execute and deliver to such Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the Obligations resulting from such payment by such Guarantor. For purposes of this Subsidiary GuaranteeSection 10, notwithstanding any stayeach Guarantor incorporated or formed under the laws of Mexico (each a “Mexican Guarantor”), injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors specifically for the purpose of receiving legal and/or judicial service of process in the United States of America in connection with this Subsidiary Guarantee. The Guarantors shall have Section 10, independently from the Lenders’ right to seek contribution from make and deliver services of process to the Mexican Guarantors in any nonother way or form which is legally valid, hereby designate the following agent and attorney-paying in-fact for such purposes in the United States of America (the “Mexican Process Agent”): NFE Management LLC The Corporation Trust Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Wilmington, New Castle County, Delaware 19801 United States of America Each Mexican Guarantor so long as represents and warrants to the exercise of such right does not impair Lenders that on the rights Closing Date, they have received evidence of the Holders under acceptance by the Guarantee.Mexican Process Agent of its appointment as such by the Mexican Guarantors. Additionally, each Mexican Guarantor covenants and agrees that it will take all necessary and appropriate action in order to grant in favor of the Mexican Process Agent, and within the fifteen (15) calendar days immediately following the Closing Date, a document of authority or power of attorney granted by each Mexican Guarantor in favor of the Mexican Process Agent in full compliance with Mexican law and duly formalized for its validity in Mexico, through such corporate actions as may be required by each Mexican Guarantor’s incorporation documents and bylaws, and in form and substance reasonably acceptable to the Lenders, in order to fully and duly formalize the designation of the Mexican Process Agent as each Mexican Guarantor’s agent for service of process in the United States of America in accordance with Mexican law. Each Mexican Guarantor hereby agrees to provide a copy of the formalization of the designation of the Mexican Process Agent within the twenty-five (25) Business Day immediately following the Closing Date. 170
Appears in 1 contract
Guarantees. Subject to the provisions of this Article 10, each of the Guarantors herebyGuarantor, jointly and severally, hereby unconditionally and irrevocably guarantees to each Holder of a Note Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the aggregate principal amount of, and premium, if any, of, and interest, if any, on, interest on the Notes Securities will be promptly duly and punctually paid in full when due, whether at maturity, by acceleration, redemption acceleration or otherwise, and interest on the overdue aggregate principal and premium, if any amount of, and premium if any, and (to the extent permitted by law) interest on any interest, if any, on, on the Notes, if any, if lawful, Securities and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder under the Securities (including fees, expenses or other) will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligations, that obligations the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or failing performance of any performance so guaranteed other obligation of the Company to the Holders, for whatever reason, the Guarantors shall each Guarantor will be jointly and severally obligated to pay or to perform or to cause the performance of, the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors An Event of Default under this Indenture or the Securities shall constitute an event of default under this Indenture Guarantee, and shall entitle the Holders of Securities to accelerate the obligations of each Guarantor hereunder in the same manner and to the same extent as the obligations of the Company. Each Guarantor hereby agree agrees that their its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Securities with respect to any provisions hereof or thereof, the recovery entry of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant whatsoever. Each Guarantor hereby covenants that this Subsidiary Indenture Guarantee shall will not be discharged except by complete performance payment in full of the obligations contained in all principal, premium, if any, and interest on the Notes and all other costs provided for under this Indenture. If any Holder the Trustee or the Trustee Holder of any Security is required by any court or otherwise to return to the CompanyCompany or any Guarantor, the Guarantors or any custodian, receiver, liquidator, trustee, liquidator sequestrator or other similar official acting in relation to either the Company or the Guarantorssuch Guarantor, any amount paid by either to the Trustee or such HolderHolder in respect of a Security, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees further agrees, to the fullest extent that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees may lawfully do so, that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 Five hereof for the purposes of this Subsidiary its Guarantee, notwithstanding any stay, injunction or other prohibition extant under any applicable bankruptcy law preventing such acceleration in respect of the obligations guaranteed hereby. Each Guarantor hereby further agrees that its obligations under this Indenture and the Securities shall be unconditional, and (y) in regardless of the event validity, regularity or enforceability of this Indenture or the Securities, the absence of any declaration of acceleration of such obligations as provided in Article 6 hereofaction to enforce this Indenture or the Securities, such obligations (whether any waiver or not due and payable) shall forthwith become due and payable consent by the Guarantors for the purpose any Holder with respect to any provisions of this Subsidiary GuaranteeIndenture or the Securities, any modification or amendment of, or supplement to, this Indenture or the Securities, the recovery of any judgment against the Company or any action to enforce any such judgment, or any other circumstance that might otherwise constitute a legal or equitable discharge or defense of a Guarantor. The Guarantors Each Guarantor that makes or is required to make any payment in respect of its Guarantee shall have the right be entitled to seek contribution from the other Guarantors to the extent permitted by applicable law; provided that each Guarantor agrees that any non-paying such claim for contribution that such Guarantor so long as may have against any other Guarantor shall be subrogated to the exercise prior payment in full, in cash, of such all obligations owed to Holders under or in respect of the Securities. Each Guarantor hereby irrevocably waives any claim or other rights that it may now or hereafter acquire against the Company that arise from the existence, payment, performance or enforcement of its obligations under its Guarantee and this Indenture, including, without limitation, any right does not impair the rights of subrogation, reimbursement, exoneration, contribution, indemnification, any right to participate in any claim or remedy of the Holders against the Company or any collateral that any such Holder or the Trustee on behalf of such Holder hereafter acquires, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, including, without limitation, the Guaranteeright to take or receive from the Company, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim or other rights. If any amount shall be paid to any Guarantor in violation of the preceding sentence and the principal of (and premium, if any) and interest on the Securities shall not have been paid in full, such amount shall be deemed to have been paid to such Guarantor for the benefit of, and held in trust for the benefit of, the Holders, and shall forthwith be paid to the Trustee for the benefit of the Holders to be credited and applied upon the principal of (and premium, if any) and interest on the Securities. Each Guarantor acknowledges that it will receive direct and indirect benefits from the issuance of the Securities pursuant to this Indenture and that the waivers set forth in this Section 10.02 are knowingly made in contemplation of such benefits. Each Guarantee set forth in this Section 10.02 shall not be valid or become obligatory for any purpose with respect to a Security until the certificate of authentication on such Security shall have been signed by or on behalf of the Trustee.
Appears in 1 contract
Samples: Xm Satellite Radio Holdings Inc
Guarantees. Subject to this Article 10Each Guarantor hereby fully, each of the Guarantors herebyirrevocably and unconditionally, jointly and severally, unconditionally guarantees (such guarantee to each Holder of a Note authenticated and delivered by be referred to herein as the Trustee and “Guarantee”), to the Trustee Holders and its their respective successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: assigns that (ai) the principal of and premiuminterest (including PIK Interest and Additional PIK Interest, if any), of, and interest, if any, on, on the Notes will shall be promptly paid in full when due, subject to any applicable grace period, whether at maturityupon redemption pursuant to the terms of the Notes, by acceleration, redemption acceleration or otherwise, and interest on the overdue principal and premiumprincipal, if any ofany, and interest on any interest, if any, on, to the Notes, if any, if extent lawful, of the Notes and all other obligations of the Company to the Holders hereunder, thereunder or under any Security Document or the Trustee hereunder or thereunder will Intercreditor Agreement shall be promptly paid in full or performed, all in accordance with the terms hereof hereof, thereof and thereofof the Security Documents and Intercreditor Agreement; and (bii) in case of any extension of time of payment or renewal of any of the Notes or of any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise. In addition , subject, however, in the case of clauses (i) and (ii) above, to the foregoing, limitations set forth in Section 8.3. The Guarantee of each Guarantor also agrees, unconditionally shall rank senior in right of payment to all subordinated Indebtedness of such Guarantor and jointly and severally equal in right of payment with each all other senior obligations of such Guarantor, to pay any including borrowings or guarantees of borrowings under the Credit Agreement and all expenses (including, without limitation, counsel fees Indebtedness under the Indenture and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediatelyExisting Notes. Each Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Notes, this Agreement, any Security Document or this Indenturethe Intercreditor Agreement, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Holders with respect to any provisions hereof or thereof, any release of any other Guarantor, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.a
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Atlantic Express Transportation Corp)
Guarantees. Subject to the provisions of this Article 10Eleven, each of the Guarantors hereby, Guarantor hereby jointly and severally, severally unconditionally guarantees to each Holder of a Note Security authenticated and delivered made available for delivery by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes Securities or the obligations of the Company hereunder or thereunderany other Guarantors to the Holders or the Trustee hereunder, that: (a) the principal of and premium, if any, of, and interest, if any, on, interest on the Notes Securities will be promptly duly and punctually paid in full when due, whether at maturity, by acceleration, redemption acceleration or otherwise, and interest on the overdue principal and premium, if any of, and (to the extent permitted by law) interest, if any, on, on the Notes, if any, if lawful, Securities and all other obligations of Obligations on the Company to the Holders or the Trustee hereunder or thereunder Securities will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligationsObligations on the Securities, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at final stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed guaranteed, for whatever reason, the Guarantors shall each Guarantor will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Securities shall constitute an event of default under the Guarantees, and shall entitle the Holders of Securities to accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company on the Securities. Each Guarantor of the Guarantors hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their its obligations hereunder shall be unconditional, irrespective of the validity, regularity regularly or enforceability of the Notes Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Securities with respect to any provisions hereof or thereof, any release of any other Guarantor, the recovery of any judgment against the Company, any action to enforce the same same, whether or not a Guarantee is affixed to any particular Security, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor of the Guarantors hereby waives the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary its Guarantee shall will not be discharged except by complete performance of the obligations contained in the Notes Securities, this Indenture and this Indenturethe Guarantee. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyCompany or to any Guarantor, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantorssuch Guarantor, any amount paid by either the Company or such Guarantor to the Trustee or such Holder, this Subsidiary Guaranteethe Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders of Securities and the Trustee, on the other hand, (xa) subject to this Article Eleven, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof Section 6.02 for the purposes of this Subsidiary Guaranteethe Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (yb) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofSection 6.02, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guaranteethe Guarantees. The Guarantees shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Company's assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Securities, whether as a "voidable preference," "fraudulent transfer" or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. No stockholder, officer, director, employer or incorporator, past, present or future, of any Guarantor, as such, shall have any personal liability under the Guarantees by reason of his, her or its status as such stockholder, officer, director, employer or incorporator. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeGuarantees. Each Guarantor, and by its acceptance hereof each Holder, hereby confirms that it is the intention of all such parties that in no event shall any Guarantor's obligations under its Guarantee be subject to avoidance under any applicable fraudulent conveyance or similar law of any relevant jurisdiction. Therefore, in the event that the Guarantees would, but for this sentence, be subject to avoidance, then the liability of the Guarantors under the Guarantees shall be reduced to the extent necessary such that such Guarantees shall not be subject to avoidance under the applicable fraudulent conveyance or similar law. Subject to the preceding limitation on liability, the Guarantee of each Guarantor constitutes a guarantee of payment in full when due and not merely a guarantee of collectability.
Appears in 1 contract
Samples: Chancellor Media Mw Sign Corp
Guarantees. (a) Subject to this Article 1013, each of the Guarantors hereby, jointly and severally, fully and unconditionally guarantees guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or held thereby and the obligations of the Company hereunder or and thereunder, that: (ai) the principal of and premium, if any, of, and interest, if any, on, interest on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturitythe Maturity Date, by acceleration, redemption upon Redemption, upon prepayment or otherwise, and interest on the overdue principal of and premium, if any of, and interest, if any, on, (to the extent permitted by law) interest on the Notes, if any, if lawfuland the Settlement Amounts upon exchange will be promptly paid and/or delivered in full when due upon exchange, and all other payment obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms hereof and thereof; and (bii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturitythe Maturity Date, by acceleration acceleration, upon Redemption, upon prepayment or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be will be, jointly and severally severally, obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee An Event of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Default with respect to any provisions hereof or thereofthe Notes under this Indenture shall constitute an event of default under the Guarantees, and shall entitle the recovery Holders to accelerate the obligations of any judgment against the Company, any action to enforce Guarantors hereunder in the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in manner and to the event of insolvency or bankruptcy same extent as the obligations of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 1 contract
Samples: Indenture (Carnival PLC)
Guarantees. Subject If Securities of or within a series are specified, as contemplated by Section 301, to this Article 10be guaranteed by the Guarantor, each of then the Guarantors hereby, jointly Guarantor hereby fully and severally, unconditionally guarantees to each Holder of a Note any such Security which is authenticated and delivered by the Trustee and to each Holder of any coupon appertaining to any such Security, if any, and to the Trustee for itself and its successors on behalf of each such Holder, the due and assigns, irrespective punctual payment of the validity and enforceability principal of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, ofon) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and interestincluding any additional interest required to be paid according to the terms of any such Security or any coupon appertaining thereto), if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwiseon each such Security, and interest on the overdue principal due and premium, if punctual payment of any of, and interestsinking fund payment (or analogous obligation), if any, onprovided for with respect to any such Security, when and as the Notes, if any, if lawful, same shall become due and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewalpayable, whether at stated maturityStated Maturity, by acceleration upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise. In addition , according to the foregoingterms thereof and of this Indenture, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing payment of any rights under a Subsidiary Guarantee Additional Amounts, if any, provided for with respect to a Guarantorany such Security as described under Section 1007 hereof (the “Guarantor Obligations”). Failing In case of the failure of the Company or any successor thereto punctually to pay any such principal, premium, interest or sinking fund payment, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon declaration of acceleration, upon tender for repayment at the option of any amount so guaranteed Holder or any performance so guaranteed for whatever reasonotherwise, as if such payment were made by the Guarantors shall be jointly and severally obligated to pay the same immediatelyCompany. Each The Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations its Guarantor Obligations hereunder shall be as if it were principal debtor and not merely surety and shall be absolute and unconditional, irrespective of the identity of the Company, the validity, regularity or enforceability of the Notes any such Security or coupon appertaining thereto or this Indenture, the absence of any action to enforce the same, any waiver or consent by any the Holder of the Notes any such Security or coupon appertaining thereto with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, Company or any action to enforce the same same, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary Guarantee shall its Guarantees will not be discharged except by complete performance of the its obligations contained in the Notes any such Security or coupon appertaining thereto and in this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 1 contract
Samples: Indenture (CBS Operations Inc.)
Guarantees. Subject to this Article 10, each of the The Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees guarantee on a senior unsecured basis and as primary obligor and not merely as surety to each Holder of a Note authenticated and delivered by the Trustee the full and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, Notes and all other obligations and liabilities of the Company under this Indenture (including without limitation interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Holders Company or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) (all the Trustee hereunder foregoing being hereinafter collectively called the "Obligations"). The Obligations of Subsidiary Guarantors under the Subsidiary Guarantees shall rank equally in right of payment with other Indebtedness of such Subsidiary Guarantor, except to the extent such other Indebtedness is expressly subordinate to the obligations arising under the Subsidiary Guarantee. Each Subsidiary Guarantor further agrees (to the extent permitted by law) that the Obligations may be extended or thereunder will be promptly paid renewed, in full whole or performedin part, all in accordance with the terms hereof without notice or further assent from it, and thereof; and (b) in case of that it shall remain bound under this Article X notwithstanding any extension of time of payment or renewal of any Obligation. Each Subsidiary Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Obligations and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any default under the Notes or the Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Subsidiary Guarantor; or (f) any change in the ownership of the Company. Each Subsidiary Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Subsidiary Guarantor or would otherwise operate as a discharge of such other obligations, Subsidiary Guarantor as a matter of law or equity. Each Subsidiary Guarantor agrees that same will be promptly paid its Guarantee herein shall remain in full when due force and effect until payment in full of all the Obligations or performed such Subsidiary Guarantor is released from its Guarantee upon the merger or the sale of all the Capital Stock or assets of the Subsidiary Guarantor in compliance with Section 10.2 or otherwise in accordance with the terms of this Indenture. Each Subsidiary Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the extension case may be, if at any time payment, or renewalany part thereof, whether at stated maturity, of principal of or interest on any of the Obligations is rescinded or must otherwise be restored by acceleration any Holder upon the bankruptcy or reorganization of the Company or otherwise. In addition furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay any of the foregoingObligations when and as the same shall become due, each Guarantor also agreeswhether at maturity, unconditionally and by acceleration, by redemption or otherwise, the Subsidiary Guarantors hereby jointly and severally with each other Guarantorpromise to and shall, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred upon receipt of written demand by the Trustee under this Indenture Trustee, forthwith pay, or cause to be paid, in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guaranteecash, to the Holders an amount equal to the sum of (i) the unpaid amount of such Obligations then due and owing and (ii) accrued and unpaid interest on such Obligations then due and owing (but only to the extent theretofore discharged, shall be reinstated in full force and effectnot prohibited by law). Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Guarantorssuch Subsidiary Guarantor, on the one hand, and the Holders and the TrusteeHolders, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof this Indenture for the purposes of this Subsidiary Guaranteeits Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby, hereby and (y) in the event of any such declaration of acceleration of such obligations as provided in Article 6 hereofObligations, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors Subsidiary Guarantor for the purpose purposes of this Subsidiary Guarantee. The Guarantors shall have Each Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys' fees) incurred by the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of Trustee or the Holders in enforcing any rights under the Guaranteethis Section 10.1.
Appears in 1 contract
Samples: Columbus Energy Corp
Guarantees. Subject to this Article 10, each of the Guarantors herebyEach Guarantor unconditionally guarantees, jointly with each other Guarantor and severally, unconditionally guarantees to each Holder of as a Note authenticated primary obligor and delivered by the Trustee and to the Trustee and its successors and assignsnot merely as a surety, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the due and punctual payment by each Borrower (other than itself) of (i) the principal of and premium, if any, ofand interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Advances made to such Borrower, when and interest, if any, on, the Notes will be promptly paid in full when as due, whether at maturity, by acceleration, redemption upon one or more dates set for prepayment or otherwise, and interest on (ii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the overdue principal pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of such Borrower to the Administrative Agent and premium, if any of, each Lender under the Credit Agreement and interest, if any, onthe other Loan Documents (collectively, the Notes“Guaranteed Parties”), if anywhether such amounts shall have accrued prior to, if lawfulon or after the Closing Date, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case the due and punctual payment and performance of any extension all covenants, agreements, obligations and liabilities of time of payment or renewal of any Notes or any of such each Borrower (other obligationsthan itself), that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration monetary or otherwise. In addition , under or pursuant to the foregoingCredit Agreement and the other Loan Documents, and (c) the due and punctual payment and performance of all obligations of each Guarantor also agreesBorrower (other than itself), unconditionally monetary or otherwise, under each Interest Rate Agreement in effect on the Closing Date to which any Lender (or an Affiliate of a Lender) is a party and jointly each Interest Rate Agreement entered into after the Closing Date with any counterparty that is a Lender (or an Affiliate of a Lender) at the time such Interest Rate Agreement is entered into (all the monetary and severally with each other Guarantor, obligations referred to pay any and all expenses in the preceding clauses (including, without limitation, counsel fees and expensesa) incurred by through (c) being collectively called the Trustee under “Obligations”). Anything contained in this Indenture in enforcing any rights under a Subsidiary Guarantee with respect Agreement to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reasonthe contrary notwithstanding, the Guarantors shall be jointly obligations of TRS and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore dischargedROC hereunder, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled limited to any right of subrogation in relation a maximum aggregate amount equal to the Holders greatest amount that would not render such obligations subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any provisions of applicable law (collectively, the “Fraudulent Transfer Laws”), in respect each case after giving effect to all other liabilities of TRS and ROC contingent or otherwise, that are relevant under the Fraudulent Transfer Laws and after giving effect as assets to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation, contribution, reimbursement, indemnity or similar rights of TRS and ROC, as the case may be, pursuant to (i) applicable law, or (ii) any agreement providing for an equitable allocation among TRS or ROC, as the case may be, and other Affiliates of Rayonier of obligations guaranteed hereby until payment in full of all obligations guaranteed herebyarising under Guarantees by such parties. Each Guarantor further agrees thatthat the Obligations may be extended or renewed, as between the Guarantorsin whole or in part, on the one handwithout notice to or further assent from it, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, that it will remain bound upon its guarantee notwithstanding any stay, injunction extension or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event renewal of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeObligation.
Appears in 1 contract
Samples: Credit Agreement (Rayonier Inc)
Guarantees. (a) Subject to this Article 1013, each of MagnaChip Semiconductor Ltd. (the Guarantors hereby, jointly and severally, “Korean Guarantor”) hereby unconditionally guarantees to each Holder of as a Note authenticated primary obligor and delivered by the Trustee and not as a surety to the Collateral Trustee and its respective successors and assigns, irrespective the prompt payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the validity principal of, premium and enforceability Liquidated Damages, if any, and interest (including any interest, fees, costs or charges that would accrue but for the provisions of this IndentureTitle 11, U.S. Code after any bankruptcy or insolvency petition under Title 11, U.S. Code) on the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee Issuers hereunder or thereunder will be promptly paid from time to time owing to each Holder of a Note by any of the Issuers any of the Note Documents, in full or performed, all each case strictly in accordance with the terms hereof thereof (such obligations being herein collectively called the “Korean Guarantor Guaranteed Obligations”). The Korean Guarantor hereby agrees that if either Issuer fails to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Korean Guarantor Guaranteed Obligations, the Korean Guarantor will promptly pay to the Collateral Trustee the same in cash, without any demand or notice whatsoever, and thereof; and (b) that in the case of any extension of time of payment or renewal of any Notes or any of such other obligationsthe Korean Guarantor Guaranteed Obligations, that the same will be promptly paid in full when due (whether at extended maturity, by acceleration or performed otherwise) in accordance with the terms of the such extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 1 contract
Samples: Indenture (MagnaChip Semiconductor LTD (United Kingdom))
Guarantees. Subject The Vendor agrees to this Article 10provide the Buyer, each within a period of thirty (30) business days from the Guarantors herebydate of receiving the transfer stipulated in CLAUSE ONE, jointly a bank guarantee, to be issued by BANCO DE SABADELL, S.A. The aforesaid bank thereunder becomes joint and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance several guarantor together with the terms hereof Vendor and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantorthe Buyer, for the amount stated above, plus legal interest due from the date of the aforesaid advance payment up to the deed execution. Failing payment when due For this purpose, the Vendor shall make available to the Buyer the original of the aforesaid bank guarantee at the office of Banco de Sabadell located in Xxxxxx Xxxxxx nº 7112- X/ Xxxxxxxx xx Xxxxxxx, 211, 28002- Madrid- 915630659, so that the Buyer can withdraw it once the aforementioned thirty (30) business days have elapsed, without the need for communication or request of any amount so guaranteed kind. The aforementioned bank guarantee is an assurance for the Buyer that the Vendor shall reimburse amounts advanced on account by the Buyer pursuant to this agreement and the private promise of purchase agreement, if construction does not commence or any performance so guaranteed for whatever reasondoes not terminate within the deadlines agreed, or if the Guarantors certificate of occupancy or equivalent document is not obtained, all strictly adhering to Additional Provision One of the Law on Urban Development. The aforesaid guarantee must be capable of extension or be supplemented by further guarantees, once the private promise of purchase agreement has been executed, in the same periods and terms provided in the previous paragraphs. The aforesaid guarantee shall be jointly and severally obligated understood to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, automatically cancelled (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (yi) in the event of any declaration the Buyer not executing the private promise of acceleration purchase agreement in the terms stipulated herein, or (ii) having executed the private promise of purchase agreement, at the time of granting the public deed of sale, the Buyer undertaking to return it to the Vendor at either such obligations act, as provided appropriate. In the absence of this requirement the aforementioned public deed of sale shall not be granted, except in Article 6 hereofthe event of loss or misplacement, such obligations (whether in which case both the loss and the relinquishment of the guarantee and authorisation to the Vendor and the issuing bank to cancel the guarantee must be recorded in the deed of execution. Likewise, the aforesaid guarantee shall be understood to be automatically cancelled in the event of the Buyer’s non-attendance or not due refusal to grant the public deed of sale, it being sufficient for this purpose for the Vendor to present to the issuing bank the notarial instrument of request and payable) shall forthwith become due and payable non-attendance by the Guarantors for Buyer, and the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guaranteerelevant Construction Completion Certificate.
Appears in 1 contract
Samples: Earnest Agreement
Guarantees. Subject to this Article 10, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations Section 5.15(a) of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performedSeller Disclosure Schedule contains a true and correct list of all guarantees, all in accordance with the terms hereof and thereof; and indemnities, surety bonds, bank guarantee, keepwell agreement, consumer financing arrangements, obligations under any Contract (bother than Seller LCs) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation commitment, understanding, agreement or obligation primarily relating to either the Company Assumed Liabilities or the GuarantorsBusiness for which Seller or any Retained Dublin Subsidiary is or may be liable as a guarantor or for which Seller or any Retained Dublin Subsidiary is required to provide financial support in any form whatsoever or by reason of performance of guarantees outstanding as of the date hereof, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, but excluding (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, under Shared Contracts and (y) obligations relating to Indebtedness for borrowed money of Seller and its Subsidiaries that are not Assumed Liabilities (the “Seller Guarantees”), the maximum amount guaranteed thereunder and, as of the date set forth on such schedule, the amount of the third party guaranteed indebtedness with respect to such Seller Guarantee that is outstanding as of such date (other than any Seller Guarantees that will terminate or expire prior to the Effective Time). After the date hereof, Seller shall not enter into any Seller Guarantee without the consent of Buyer (not to be unreasonably withheld, conditioned or delayed), other than (i) any Seller Guarantees (or renewal or extension thereof) that will terminate or expire prior to the Effective Time, (ii) new guarantees in connection with any customer financing program (provided that the outstanding Seller Guarantees under customer financing program shall not exceed $10,000,000 in the event of aggregate at any declaration of acceleration of such obligations as time), (iii) any Seller Guarantees contemplated by the Pre-Closing Reorganization and (iv) any Seller Guarantees (other than those contemplated by clause (ii) hereof) provided in Article 6 hereofthe ordinary course of business that will remain in effect immediately following the Closing under which the maximum amount guaranteed, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from together with any non-paying Guarantor so long Seller Guarantees in existence as the exercise of such right does not impair the rights of the Holders date hereof that remain outstanding as of the Closing Date, shall not exceed $10,000,000 in the aggregate. Prior to the Closing Date, Seller, Buyer and the Transferred Subsidiaries shall cooperate and shall use their respective commercially reasonable efforts to terminate, or, if the Parties are unable to so terminate, cause Buyer or one of the Transferred Subsidiaries to be substituted in all respects for Seller or the applicable Retained Dublin Subsidiary in respect of, all obligations of Seller or any Retained Dublin Subsidiary under Seller Guarantees on the GuaranteeClosing Date.
Appears in 1 contract
Guarantees. Subject On or as soon as possible after the date of this Agreement but prior to this Article 10the Closing Date, each of Buyer, Seller and the Guarantors herebyCompany shall cooperate with one another, jointly at Buyer’s sole cost and severallyexpense, unconditionally guarantees and use their respective commercially reasonable efforts to cause the release of each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective guarantor (or indemnitor or other applicable obligor) under each of the validity and enforceability of this IndentureExisting Guarantees, the Notes or the obligations of the Company hereunder or thereunder, that: including by (ai) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes substituting Buyer for Seller or any of such the Spin-Off Entities, in the case of an Existing Guaranty under which Seller or any of the Spin-Off Entities is the guarantor, indemnitor or other obligationsapplicable obligor, that same or (ii) by substituting Seller (or one of its Affiliates) or one of the Spin-Off Entities for any of the Outdoor Group Entities, in the case of an Existing Guaranty under which any of the Outdoor Group Entities is the guarantor, indemnitor or other applicable obligor, in each case as the substitute guarantor, indemnitor or other applicable obligor (a “Substitute Guaranty”) under each Existing Guaranty, which Substitute Guarantees will be promptly paid in full when due or performed in accordance with effective on the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwiseClosing. In addition to Without limiting the foregoing, Buyer hereby undertakes, assumes and agrees to perform, pay and discharge as of the Closing all Existing Guarantees in favor of the Outdoor Group Entities in respect of which Seller or any of the Spin-Off Entities is the guarantor, indemnitor or other applicable obligor, and Seller hereby undertakes, assumes and agrees to perform, pay and discharge as of the Closing all Existing Guarantees in favor of the Spin-Off Entities in respect of which any of the Outdoor Group Entities is the guarantor, indemnitor or other applicable obligor, in each Guarantor also agrees, unconditionally case until such time as they are released. Buyer shall indemnify and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee hold harmless Seller with respect to a Guarantor. Failing payment when due all liabilities arising out of or relating to any amount so guaranteed such Existing Guarantees in favor of the Outdoor Group Entities in respect of which Seller or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validitySpin-Off Entities is the guarantor, regularity indemnitor or enforceability of the Notes or this Indentureother applicable obligor, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes and Seller shall indemnify and hold harmless Buyer with respect to all liabilities arising out of or relating to any provisions hereof such Existing Guarantees in favor of the Spin-Off Entities in respect of which any of the Outdoor Group Entities is the guarantor, indemnitor or thereofother applicable obligor. Without limiting the foregoing, Buyer or Seller, as applicable, shall immediately, and in any event within ten (10) Business Days after receipt by one of such parties of notice from the recovery other party of a claim for indemnification hereunder, fully indemnify such other party from any judgment against the Companyclaim or demand of, any action to enforce the same or liability with respect to, all or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court the Existing Guarantees in the event of insolvency or bankruptcy of the Companythat such Existing Guarantees have not been released prior to Closing, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee such indemnification obligation shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled subject to any right of subrogation limitations on liability set forth in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeSection 9.2.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (CBS Outdoor Americas Inc.)
Guarantees. Subject The Guarantors (as defined in the Indenture (the “Indenture”) referred to in the Note upon which this Article 10, notation is endorsed and each hereinafter referred to as a “Guarantor”) have unconditionally guaranteed on a senior unsecured basis (such guarantee by each Guarantor being referred to herein as the “Guarantee”) (i) the due and punctual payment of the Guarantors hereby, jointly principal of and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, interest on the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration, redemption acceleration or otherwise, otherwise and interest on the overdue principal and premiumprincipal, if any ofany, and interest on any interest, if any, on, to the Notes, if any, if extent lawful, of the Notes and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; set forth in of the Indenture and (bii) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise. In addition Each Guaranty will be limited to an amount not to exceed the maximum amount that can be guaranteed by such Guarantor after giving effect to all of its other contingent and fixed liabilities without rendering such Guaranty, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally. The obligations of the undersigned to the foregoing, each Guarantor also agrees, unconditionally Holders of the Notes and jointly to the Trustee pursuant to the Guarantee and severally with each other Guarantor, the Indenture are expressly set forth in Article X of the Indenture and reference is hereby made to pay any the Indenture for the precise terms of the Guarantee and all expenses (includingother of the provisions of the Indenture to which this Guarantee relates. No past, without limitationpresent or future stockholder, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due director, officer, employee or incorporator, as such, of any amount so guaranteed or any performance so guaranteed for whatever reason, of the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective have any liability for any obligation of the validity, regularity or enforceability of Guarantors under the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by Indenture or for any court or otherwise to return to the Companyclaim based on, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofby reason of, such obligations (whether or not due their creation. Each Holder of a Note by accepting a Note waives and payable) shall forthwith become due releases all such liability. The waiver and payable by release are part of the Guarantors consideration for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights issuance of the Holders under the GuaranteeGuarantees. SUBSIDIARY GUARANTORS: PrintCo., Inc. By: Name: Title: Webcraft LLC By: Name: Title: Webcraft Chemicals LLC By: Name: Title: Enteron Group LLC By: Name: Title: Big Flower Digital Services (Delaware), Inc. By: Name: Title: Big Flower Digital LLC By: Name: Title:
Appears in 1 contract
Samples: Indenture (Vertis Inc)
Guarantees. Subject to this Article 10Except as otherwise provided herein, each of the Guarantors hereby, jointly ---------- Guarantor hereby fully and severally, unconditionally guarantees to each Holder of a Note Security authenticated and delivered by the Trustee Trustee, and to the Trustee on behalf of such Holder, the due and its successors and assigns, irrespective punctual payment of the validity and enforceability principal of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, such Security and all other obligations of the Company to under this Indenture when and as the Holders same shall become due and payable, whether at the stated maturity, by acceleration, call for redemption, upon a repurchase date or the Trustee hereunder or thereunder will be promptly paid in full or performedotherwise, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of such Security and of this Indenture, including, but not limited to, the extension or renewal, whether at stated maturity, by acceleration or otherwiseobligation of the Company to deliver Common Shares to Holders upon conver sion of the Securities. In addition The Guarantor hereby fully and unconditionally also guaran tees to the foregoing, each Guarantor also agrees, unconditionally Trustee the due and jointly and severally with each other Guarantor, punctual payment of all obligations of the Company to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing Indenture. In case of the failure of the Company punctually to make any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reasonsuch payment, the Guarantors shall Guarantor hereby agrees to cause such payment to be jointly made punctually when and severally obligated to pay as the same immediatelyshall become due and payable, whether at the stated maturity or by acceleration, call for redemption, upon a repurchase date or otherwise, and as if such payment were made by the Company. Each The Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their its obligations hereunder shall be absolute and unconditional, irrespective of of, and shall be unaffected by, the validity, regularity or enforceability of the Notes such Security or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any release, amendment, waiver or indulgence granted to the Company or the Guarantor or any consent to departure from any requirement of any other circumstance guarantee of all or any of the Securities or any other circumstances which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each The Guarantor hereby waives the benefits of diligence, presentment, demand for payment, any requirement that the Trustee or any of paymentthe Holders protect, secure, perfect or insure any security interest in or other lien on any property subject thereto or exhaust any right or take any action against the Company or any other Person or any collateral, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, protest or notice with respect to such Security or the Indebtedness evidenced thereby and all demands whatsoever whatsoever, and covenant covenants that this Subsidiary Guarantee shall will not be discharged in respect of such Security except by complete performance of the obligations contained in such Security and in such Guarantee. The Guarantor agrees that if, after the Notes occurrence and this Indenture. If any Holder or during the continuance of an Event of Default, the Trustee is required or any of the Holders are prevented by applicable law from exercising their respective rights to accelerate the maturity of the Securities, to collect premium, if any, on the Securities, or to enforce or exercise any court other right or otherwise to return remedy with respect to the CompanySecurities, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation Guarantor agrees to either the Company or the Guarantors, any amount paid by either pay to the Trustee for the account of the Holders, upon demand therefor, the amount that would otherwise have been due and payable had such rights and remedies been permitted to be exercised by the Trustee or any of the Holders. The Guarantor shall be subrogated to all rights of the Holders of the Securities upon which its Guarantee is endorsed against the Company in respect of any amounts paid by the Guarantor on account of such Holder, this Subsidiary Guarantee, Security pursuant to the extent theretofore dischargedprovisions of its Guarantee or this Indenture; provided, shall be reinstated in full force and effect. Each however, that the Guarantor agrees that it shall not be entitled to enforce or to receive any payment arising out of, or based upon, such right of subrogation until the principal of and premium, if any, on all Securities issued hereunder shall have been paid in relation full. Each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization, should the Company become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any part of the Company's assets, and shall, to the Holders fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Securities, is, pursuant to applicable law, rescinded or reduced in respect amount, or must otherwise be restored or returned by any Holder of the Securities, whether as a "voidable preference," "fraudulent transfer," or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Securities shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. Any term or provision of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees thatGuarantee to the contrary notwithstand ing, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity aggregate amount of the obligations guaranteed hereby may hereunder shall be accelerated as provided in Article 6 hereof for reduced to the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction extent necessary to prevent such Guarantee from violating or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether becoming voidable under applicable law relating to fraudulent conveyance or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair fraudulent transfer or similar laws affecting the rights of the Holders under the Guaranteecreditors generally.
Appears in 1 contract
Samples: Tyco International LTD /Ber/
Guarantees. Subject to this Article 10, each (a) Upon the acquisition by the Issuers or any Guarantor of the Guarantors herebyCapital Stock of any person, if, as a result of such acquisition, such Person becomes a Subsidiary, such Subsidiary (other than Foreign Subsidiaries) may, and after the Company's 9-3/4% Senior Subordinated Notes due 2004 are no longer outstanding, shall irrevocably and unconditionally guarantee, 108 118 jointly and severally, unconditionally guarantees on a senior unsecured basis (the "Guarantee") to each Holder of a Note Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes Securities or the obligations of the Company hereunder Issuers under this Indenture or thereunderthe Securities, that: (aw) the principal and premiumpremium (if any) of and interest (and Liquidated Damages, if any, of, and interest, if any, on, ) on the Notes Securities will be promptly paid in full when due, whether at maturitythe maturity or interest payment date, by acceleration, redemption call for redemption, upon an Change of Control Offer, an Asset Sale Offer or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and ; (x) all other obligations of the Company Issuers to the Holders or the Trustee hereunder under this Indenture or thereunder the Securities will be promptly paid in full or performed, all in accordance with the terms hereof of this Indenture and thereofthe Securities; and (by) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligations, that same they will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration acceleration, call for redemption, upon an Offer to Purchase or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors each Guarantor shall be jointly and severally obligated to pay the same immediatelybefore failure so to pay becomes an Event of Default. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective Within 10 days of the validitydate of such Acquisition, regularity or enforceability of the Notes or this Indenturesuch Subsidiary, the absence of any action to enforce the sameif it becomes a Guarantor, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice shall execute and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either deliver to the Trustee or a supplemental indenture making such Holder, Subsidiary a party to this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeIndenture.
Appears in 1 contract
Samples: Indenture (Venture Service Co)
Guarantees. Subject to this Article 10(a) For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the Guarantors hereby, hereby jointly and severally, severally and irrevocably and unconditionally guarantees to the Trustee and to each Holder of a Note Security authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and or enforceability of this Indenture, the Notes Indenture or the obligations Securities or the Obligations of the Company hereunder or thereunderand the Guarantors under this Indenture, that: (ai) the principal and of, premium, if any, ofand any interest, on the Securities (including, without limitation, any interest that accrues after the filing of a proceeding of the type described in Sections 6.01(e) and interest(f)), Liquidated Damages, if any, onon the Securities and any fees, the Notes expenses and other amounts owing under this Indenture will be promptly duly and punctually paid in full when due, whether at maturityStated Maturity, by acceleration, redemption call for redemption, upon a Purchase Notice, a Change in Control Offer, purchase or otherwise, and interest on the overdue principal and premium, if any of, and (to the extent permitted by law) interest, if any, on, on the Notes, if any, if lawfulSecurities and any other amounts due in respect of the Securities, and all other obligations Obligations of the Company and the Guarantors to the Holders of the Securities under this Indenture and the Securities, whether now or the Trustee hereunder or thereunder hereafter existing, will be promptly paid in full or performed, all strictly in accordance with the terms hereof and thereofof the Securities; and (bii) in case of any extension of time of payment or renewal of any Notes Securities or any of such other obligationsObligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturityStated Maturity, by acceleration acceleration, call for redemption, upon a Purchase Notice, a Change in Control Offer, purchase or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing If payment is not made when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors each Guarantor shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.individually
Appears in 1 contract
Samples: Grey Wolf Inc
Guarantees. Subject to this Article 1011, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal of and premium, if any, of, premium and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations Obligations of the Company to the Holders or the Trustee hereunder or thereunder will shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that the same will be promptly paid in full when due 54 62 or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations Obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantee.
Appears in 1 contract
Samples: Windmere Durable Holdings Inc
Guarantees. Subject to this Article 10Section 11.04 hereof, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or and the obligations Obligations of the Company hereunder or and thereunder, that: (a) the principal and of, premium, if any, of, interest and interestAdditional Interest, if any, on, on the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and principal, premium, if any of(to the extent permitted by law), and interest on any interest, if any, on, the Notesand Additional Interest, if any, if lawfulon the Notes, and all other payment Obligations of the Company to the Holders or all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration acceleration, redemption or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, reason the Guarantors shall will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that An Event of Default under this is a guarantee Indenture or the Notes shall constitute an event of payment default under the Guarantees, and not a guarantee shall entitle the Holders to accelerate the obligations of collectionthe Guarantors hereunder in the same manner and to the same extent as the Obligations of the Company. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity validity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary its Guarantee shall will not be discharged except by complete performance of the obligations Obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors Guarantors, or any custodianNote Custodian, trusteeTrustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either the Company or any Guarantor to the Trustee or such Holder, this Subsidiary Guaranteethe Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary its Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed herebythereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors Guarantor for the purpose of this Subsidiary its Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor as provided in Section 11.06 hereof so long as the exercise of such right does not impair the rights of the Holders or the Trustee under the GuaranteeGuarantees or this Indenture.
Appears in 1 contract
Samples: Blount International Inc
Guarantees. Subject to the provisions of this Article 10, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations Obligations of the Company Issuers hereunder or thereunder, that: (a) the principal of, premium, interest and premiumAdditional Interest, if any, of, and interest, if any, on, on the Notes will shall be promptly paid in full when due, whether at maturitythe maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal and of, premium, if any of, interest and interestAdditional Interest, if any, on, on the Notes, if any, if lawful, and all other obligations Obligations of the Company Issuers to the Holders or the Trustee hereunder or thereunder will under this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms hereof of this Indenture and thereofthe Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturityStated Maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Subsidiary Guarantors hereby agree that to the fullest extent permitted by applicable law, their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereofof this Indenture and the Notes, the recovery of any judgment against the CompanyIssuers, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorSubsidiary Guarantor. Each To the fullest extent permitted by applicable law, each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyIssuers, any right to require a proceeding first against the CompanyIssuers, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee the Guarantees shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuers or Subsidiary Guarantors, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company Issuers or the Subsidiary Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guaranteethese Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteethese Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Guaranteethese Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guaranteethese Guarantees.
Appears in 1 contract
Samples: Gulfterra Energy Partners L P
Guarantees. Subject to this Article 10, each of the Guarantors hereby, jointly The Guarantor hereby fully and severally, unconditionally guarantees to each Holder of a Note each Security which is authenticated and delivered by the Trustee Trustee, and to the Trustee for itself and its successors on behalf of each such Holder, the due and assignspunctual payment in full, irrespective of the validity and enforceability of this Indentureprincipal of, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, ofand interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and interestincluding any additional interest required to be paid according to the terms of any such Security), if any, onon such Security, when and as the Notes will be promptly paid in full when duesame shall become due and payable, whether at maturityStated Maturity, by upon redemption, upon acceleration, redemption upon tender for repayment at the option of any Holder or otherwise, according to the terms thereof and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, of this Indenture and all other obligations of the Company Issuer with respect to such Security to the Holders Holder or the Trustee hereunder or thereunder will be promptly paid (the “Guarantor Obligations”). In case of the failure of the Issuer or any successor thereto punctually to pay in full any such principal, premium or performedinterest, all in accordance with the terms hereof and thereof; and (b) in case of Guarantor hereby agrees to cause any extension of time of such payment or renewal of any Notes or any of such other obligations, that same will to be promptly paid made punctually in full when and as the same shall become due or performed in accordance with the terms of the extension or renewaland payable, whether at stated maturityStated Maturity, by acceleration upon redemption, upon declaration of acceleration, or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred as if such payment were made by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a GuarantorIssuer. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each The Guarantor agrees that this Guarantee is a guarantee of payment and not a guarantee of collection. The Guarantors Guarantor hereby agree agrees that their obligations its Guarantor Obligations hereunder with respect to any Securities shall be as if it were principal debtor and not merely surety and shall be absolute and unconditional, irrespective of the identity of the Issuer, the validity, regularity or enforceability of the Notes any such Security appertaining thereto or this Indenture, the absence of any action to enforce the same, any waiver or consent by any the Holder of the Notes any such Security with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, Issuer or any action to enforce the same same, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorguarantor including but not limited to: (A) any right to require any of the Trustee, the Holders or the Issuer (each a “Benefited Party”), as a condition of payment or performance by the Guarantor, to (1) proceed against the Guarantor, the Issuer or any other Person, (2) proceed against or exhaust any security held from the Guarantor, the Issuer or any other Person or (3) proceed against or have to resort to any balance of any deposit account or credit on the books of any Benefited Party in favor of the Guarantor, the Issuer or any other Person, and (B) any defense based on or arising out of the lack of validity or the unenforceability of the obligations under this Guarantee or any agreement or instrument relating hereto. Each The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyIssuer, any right to require a proceeding first against the CompanyIssuer, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary its Guarantee shall will not be discharged except by complete performance of the its obligations contained in the Notes any such Security and in this IndentureGuarantee. If any Holder the Trustee or the Trustee Holder of any Security is required by any court or otherwise to return to the CompanyIssuer or the Guarantor, the Guarantors or any custodian, receiver, liquidator, assignee, trustee, liquidator sequestrator or other similar official acting in relation to either the Company Issuer or the GuarantorsGuarantor, any amount paid by either to the Trustee or such HolderHolder in respect of a Security included in such Guarantor’s Guarantor Obligations, this Subsidiary the applicable Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each The Guarantor further agrees, to the fullest extent that it may lawfully do so, that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations included in such Guarantor’s Guarantor Obligations may be accelerated as provided in Article VI hereof for the purposes of the applicable Guarantee, notwithstanding any stay, injunction or other prohibition extant under any applicable bankruptcy law preventing such acceleration in respect of the obligations guaranteed hereby and (2) in the event of any declaration of acceleration of such obligations as provided in Article VI hereof, such obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor for the purpose of this Guarantee. The Guarantor agrees that it shall will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment and performance in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as provided that the foregoing shall not be deemed to restrict any separate indemnity agreement between the Guarantors, on the one hand, Issuer and the Holders Guarantor. The Guarantor hereby agrees to pay any and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, all costs and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable expenses incurred by the Guarantors for Trustee in enforcing its respective rights under the purpose of this Subsidiary Guarantee. The Guarantors Guarantee shall have remain in full force and effect and continue to be effective should any petition be filed by or against the right to seek contribution from Issuer for liquidation or reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a custodian be appointed for all or any non-paying Guarantor so long as the exercise of such right does not impair the rights significant part of the Holders under the GuaranteeIssuer’s assets.
Appears in 1 contract
Guarantees. Subject to this Article 10X, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee Notes of each applicable series and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the such Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and of, premium, if any, of, and interest, if any, on, interest on the Notes of each applicable series will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interestpremium, if any, on, and interest on such Notes (at the applicable rate of interest or Yield to Maturity (in the case of Original Issue Discount Notes)), if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in the case of any extension of time of payment or renewal of any such Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Subsidiary Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes of any applicable series or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the such Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes of each applicable series and this IndentureIndenture or pursuant to Section 10.04. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Subsidiary Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of any series of Notes in respect of any obligations guaranteed hereby until payment in full of all obligations with respect to such Notes guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof VI for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofVI, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-non paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 1 contract
Samples: E TRADE FINANCIAL Corp
Guarantees. Subject to this Article 10XII, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and of, premium, if any, of, and interest, if any, on, interest on the Notes will shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and premium, if any of, and interest, if any, on, interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration pursuant to Section 4.02 hereof or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors Each Guarantor hereby agree agrees that their its obligations hereunder with regard to this Guarantee shall be joint and several and unconditional, irrespective of the validity, regularity validity or enforceability of the Notes or the obligations of the Company under this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the CompanyCompany or any other obligor with respect to this Indenture, the Notes or the Obligations of the Company under this Indenture or the Notes, any action to enforce the same or any other circumstance circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each Guarantor hereby further, to the extent permitted by law, waives diligenceand relinquishes all claims, presentmentrights and remedies accorded by applicable law to guarantors and agrees not to assert or take advantage of any such claims, demand of paymentrights or remedies, filing of claims with a court in the event of insolvency or bankruptcy of the Company, including but not limited to: (a) any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance any of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under or the Guarantee.Company (each a "BENEFITED PARTY"), as a condition
Appears in 1 contract
Samples: Arch Wireless Communications Inc
Guarantees. Subject If Securities of or within a series are specified, as contemplated by Section 301, to this Article 10be guaranteed by the Guarantor, each of then the Guarantors hereby, jointly Guarantor hereby fully and severally, unconditionally guarantees to each Holder of a Note any such Security which is authenticated and delivered by the Trustee and to each Holder of any coupon appertaining to any such Security, if any, and to the Trustee for itself and its successors on behalf of each such Holder, the due and assigns, irrespective punctual payment of the validity and enforceability principal of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, ofon) and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest and interestincluding any additional interest required to be paid according to the terms of any such Security or any coupon appertaining thereto), if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwiseon each such Security, and interest on the overdue principal due and premium, if punctual payment of any of, and interestsinking fund payment (or analogous obligation), if any, onprovided for with respect to any such Security, when and as the Notes, if any, if lawful, same shall become due and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewalpayable, whether at stated maturityStated Maturity, by acceleration upon redemption, upon acceleration, upon tender for repayment at the option of any Holder or otherwise. In addition , according to the foregoingterms thereof and of this Indenture, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing payment of any rights under a Subsidiary Guarantee Additional Amounts, if any, provided for with respect to a Guarantorany such Security as described under Section 1007 hereof (the "Guarantor Obligations"). Failing In case of the failure of the Company or any successor thereto punctually to pay any such principal, premium, interest or sinking fund payment, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon declaration of acceleration, upon tender for repayment at the option of any amount so guaranteed Holder or any performance so guaranteed for whatever reasonotherwise, as if such payment were made by the Guarantors shall be jointly and severally obligated to pay the same immediatelyCompany. Each The Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations its Guarantor Obligations hereunder shall be as if it were principal debtor and not merely surety and shall be absolute and unconditional, irrespective of the identity of the Company, the validity, regularity or enforceability of the Notes any such Security or coupon appertaining thereto or this Indenture, the absence of any action to enforce the same, any waiver or consent by any the Holder of the Notes any such Security or coupon appertaining thereto with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, Company or any action to enforce the same same, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary Guarantee shall its Guarantees will not be discharged except by complete performance of the its obligations contained in the Notes any such Security or coupon appertaining thereto and in this IndentureGuarantee. If any Holder the Trustee or the Trustee Holder of any Security or any coupon appertaining thereto is required by any court or otherwise to return to the CompanyCompany or the Guarantor, the Guarantors or any custodian, receiver, liquidator, assignee, trustee, liquidator sequestrator or other similar official acting in relation to either the Company or the GuarantorsGuarantor, any amount paid by either to the Trustee or such HolderHolder in respect of a Security or any coupons appertaining thereto, this Subsidiary the Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each The Guarantor agrees further agrees, to the fullest extent that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees may lawfully do so, that, as between the GuarantorsGuarantor, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed Guaranteed hereby may be accelerated as provided in Article 6 Five hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition extant under any applicable bankruptcy law preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors Guarantor shall have the right be subrogated to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the all rights of the Holders under of the GuaranteeSecurities of a series (and of any coupons appertaining thereto) against the Company in respect of any amounts paid by the Guarantor on account of such Securities or any coupons appertaining thereto or this Indenture; provided, however, that the Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until the principal of (and premium, if any, on) and interest, if any, on all Securities of such series shall have been indefeasibly paid in full.
Appears in 1 contract
Samples: Indenture (Viacom Inc)
Guarantees. (a) Subject to this Article 10Indenture and unless provided otherwise under any board resolution or indenture supplement hereto, each of the Guarantors herebyGuarantor hereby irrevocably, jointly fully and severally, unconditionally guarantees to each the Trustee and the Holder of a Note any Security issued under this Indenture duly authenticated and delivered by the Trustee Trustee, the due and to the Trustee and its successors and assigns, irrespective punctual payment of the validity and enforceability of this Indentureprincipal, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, of (including any amount in respect of original issue discount) and interest, if anyany (together with any Additional Amounts payable pursuant to the terms of any such Security), on, on any such Security and the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, due and interest on punctual payment of the overdue principal and premium, if any of, and interestsinking fund payments, if any, on, the Notesand analogous obligations, if any, if lawfulprovided for pursuant to the terms of any such Security, when and as the same shall become due and payable, whether at Stated Maturity or upon redemption, repayment or upon declaration of acceleration or otherwise according to the terms of any such Security and of the Indenture. In case of default by the relevant Issuer in the payment of any such principal (including any amount in respect of original issue discount), and all other obligations of the Company any premium or interest (together with any Additional Amounts payable pursuant to the Holders terms of any such Security), sinking fund payment, or analogous obligation, the Trustee Guarantor agrees, duly and punctually to pay the same when and as the same shall become due and payable. The Guarantor hereby agrees that its obligations hereunder or thereunder will shall be promptly paid in full or performed, all in accordance with the terms hereof as principal and thereof; not merely as surety and (b) in case shall be absolute and unconditional irrespective of any extension of the time of for payment or renewal of any Notes or such Security, any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due modification of any amount so guaranteed such Security, any invalidity, irregularity or unenforceability of any performance so guaranteed for whatever reason, such Security or the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action failure to enforce the same or any waiver, modification, consent or indulgence granted to the relevant Issuer with respect thereto by the holder of any such Security or the Trustee, or any other circumstance circumstances which might may otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency merger or bankruptcy of the Companyrelevant Issuer, any right to require a demand or proceeding first against the Companyrelevant Issuer, protest, protest or notice with respect to any such Security or the indebtedness evidenced thereby and all demands whatsoever whatsoever, and covenant covenants that this Subsidiary Guarantee shall will not be discharged as to any such Security except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, principal of (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding including any stay, injunction or other prohibition preventing such acceleration amount payable in respect of the obligations guaranteed herebyoriginal issue discount), and any premium or interest (y) in together with any Additional Amounts payable pursuant to the event terms of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payableSecurity) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guaranteethereon.
Appears in 1 contract
Samples: Indenture (Haleon PLC)
Guarantees. Subject to this Article 10, each of the Guarantors herebyEach Guarantor hereby unconditionally guarantees, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assignsassigns (a) the full and punctual payment of principal of (and premium, irrespective if any) and interest on the Securities when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, and all other monetary obligations of the validity Issuer under this Indenture and enforceability the Securities and (b) the full and punctual performance within applicable grace periods of all other obligations of the Issuer under this Indenture and the Securities (all the foregoing being hereinafter collectively called the “Obligations”). Each Guarantor further agrees that the Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Guarantor, and that such Guarantor 105 will remain bound under this Article Thirteen notwithstanding any extension or renewal of any Obligation. Each Guarantor waives presentation to, demand of, payment from and protest to the Issuer of any of the Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Securities or the Obligations. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Securities or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes Securities or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Obligations or any of them; (e) the failure of any Holder or the Trustee to exercise any right or remedy against any other guarantor of the Obligations; or (f) any change in the ownership of such Guarantor. Each Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Obligations. Except as expressly set forth in Sections 805, 806, 1017, 1019, 1202, 1203, 1303 and 1308, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the Company hereunder invalidity, illegality or thereunderunenforceability of the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, that: the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of such Guarantor or would otherwise operate as a discharge of such Guarantor as a matter of law or equity. Each Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of (a) the principal and or premium, if any) or interest on any Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Issuer or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against any Guarantor by virtue hereof, of, and interestupon the failure of the Issuer to pay the principal of (or premium, if any, on, ) or interest on any Obligation when and as the Notes will be promptly paid in full when same shall become due, whether at maturityStated Maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other Obligation, each Guarantor hereby promises to 106 and interest on will, upon receipt of written demand by the overdue principal and premiumTrustee, if any offorthwith pay, and interestor cause to be paid, if anyin cash, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with an amount equal to the terms hereof and thereof; and sum of (bi) in case of any extension of time of payment or renewal of any Notes or any the unpaid amount of such other obligationsObligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally (ii) accrued and jointly and severally with each other Guarantor, to pay any and all expenses unpaid interest on such Obligations (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, but only to the extent theretofore discharged, shall be reinstated in full force not prohibited by law) and effect(iii) all other monetary Obligations of the Issuer to the Holders and the Trustee. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Obligations guaranteed hereby until payment in full in cash of all obligations guaranteed herebyObligations. Each Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof Five for the purposes of this Subsidiary Guaranteesuch Guarantor’s Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereofFive, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Guarantor for the purpose purposes of this Subsidiary GuaranteeSection 1301. The Guarantors shall have Each Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the right to seek contribution from Trustee or any non-paying Guarantor so long as the exercise of such right does not impair the Holder in enforcing any rights of the Holders under the Guaranteethis Section 1301.
Appears in 1 contract
Guarantees. Subject The Guarantors (as defined in the Indenture (the “Indenture”) referred to in the Note upon which this Article 10, notation is endorsed and each hereinafter referred to as a “Guarantor”) have unconditionally guaranteed on a senior unsecured basis (such guarantee by each Guarantor being referred to herein as the “Guarantee”) (i) the due and punctual payment of the Guarantors hereby, jointly principal of and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, interest on the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration, redemption acceleration or otherwise, otherwise and interest on the overdue principal and premiumprincipal, if any ofany, and interest on any interest, if any, on, to the Notes, if any, if extent lawful, of the Notes and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; set forth in of the Indenture and (bii) in case of any extension of time of payment or renewal of any Notes or of any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration or otherwise. In addition Each Guaranty will be limited to an amount not to exceed the maximum amount that can be guaranteed by such Guarantor after giving effect to all of its other contingent and fixed liabilities without rendering such Guaranty, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally. The obligations of the undersigned to the foregoing, each Guarantor also agrees, unconditionally Holders of the Notes and jointly to the Trustee pursuant to the Guarantee and severally with each other Guarantor, the Indenture are expressly set forth in Article X of the Indenture and reference is hereby made to pay any the Indenture for the precise terms of the Guarantee and all expenses (includingother of the provisions of the Indenture to which this Guarantee relates. No past, without limitationpresent or future stockholder, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due director, officer, employee or incorporator, as such, of any amount so guaranteed or any performance so guaranteed for whatever reason, of the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective have any liability for any obligation of the validity, regularity or enforceability of Guarantors under the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by Indenture or for any court or otherwise to return to the Companyclaim based on, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofby reason of, such obligations (whether or not due their creation. Each Holder of a Note by accepting a Note waives and payable) shall forthwith become due releases all such liability. The waiver and payable by release are part of the Guarantors consideration for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights issuance of the Holders under Guarantees. [INSERT SUBSIDIARY GUARANTOR SIGNATURE BLOCKS AS APPROPRIATE] EXHIBIT F RESTRICTED CONTROL SECURITY LEGEND Each Restricted Security shall bear a legend in substantially the Guaranteefollowing form: THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933 (THE “SECURITIES ACT”), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) TO THE COMPANY, (II) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (III) PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT, EXERCISABLE BY EITHER, PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (III) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION TO THE COMPANY, THE TRUSTEE AND THE REGISTRAR REASONABLY SATISFACTORY TO THE COMPANY, IN EACH OF CASES (I) THROUGH (III) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
Appears in 1 contract
Samples: Indenture (USA Direct, LLC)
Guarantees. Subject to this Article 10, each of the Guarantors hereby, jointly and severally, The Guarantor hereby unconditionally guarantees to each Holder of a Note SEN authenticated and delivered by the Trustee Trustee, the due and to the Trustee and its successors and assigns, irrespective punctual payment of the validity and enforceability principal of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, ) and interest, if anyon such SEN (including all Additional Amounts payable by the Company or the Guarantor in respect thereof pursuant to Section 1217), on, when and as the Notes will be promptly paid in full when duesame shall become due and payable, whether at maturitythe Stated Maturity, by declaration of acceleration, call for redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of such SEN and of this Indenture. In case of the extension or renewalfailure of the Company punctually to make any such payment, the Guarantor hereby agrees to cause such payment to be made punctually when and as the same shall become due and payable, whether at stated maturitythe Stated Maturity or by declaration of acceleration, by acceleration call for redemption or otherwise. In addition to , and as if such payment were made by the foregoingCompany, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred Additional Amounts payable by the Trustee under this Indenture Guarantor in enforcing any rights under a Subsidiary Guarantee with respect thereof pursuant to a GuarantorSection 1217. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each The Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes such SEN or this Indenture, the absence of any action to enforce the same, any waiver or consent by any the Holder of such SEN or by the Notes Trustee with respect to any provisions hereof thereof or thereofof this Indenture, the recovery obtaining of any judgment against the Company, Company or any action to enforce the same or any other circumstance circumstances which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each The Guarantor hereby waives the benefits of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, protest or notice with respect to such SEN or the indebtedness evidenced thereby or with respect to any sinking fund payment required pursuant to the terms of such SEN and all demands whatsoever whatsoever, and covenant covenants that this Subsidiary Guarantee shall will not be discharged in respect of such SEN except by complete performance payment in full of the obligations contained principal of (and premium, if any) and interest on such SEN (including all Additional Amounts payable in respect thereof pursuant to Section 1217). The Guarantor hereby agrees that, in the Notes event of a default in payment of principal (or premium, if any) or interest on such SEN, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such SEN thereto, on the terms and conditions set forth in this Indenture, directly against the Guarantor to enforce this guarantee without first proceeding against the Company. If The Guarantor shall be subrogated to all rights of the Holders of the SENs of a particular Series against the Company in respect of any Holder or the Trustee is required amounts paid by any court or otherwise to return it on account of such SEN pursuant to the Companyprovisions of this Guarantee or this Indenture; provided, however, that the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation in relation to until the Holders in respect principal of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that(and premium, as between the Guarantorsif any) and interest, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration all SENs of such obligations as provided in Article 6 hereof, such obligations Series issued hereunder (whether or not due and payable) shall forthwith become due and including all Additional Amounts 110 97 payable by the Guarantors for Company or the purpose of this Subsidiary GuaranteeGuarantor in respect thereof pursuant to Section 1217) shall have been paid in full or duly provided for. The Guarantors Guarantees set forth in this Section shall not be valid or become obligatory for any purpose with respect to a SEN of any Series until the certificate of authentication on such SEN shall have been signed by the right to seek contribution from any non-paying Guarantor so long as the exercise Trustee by manual signature of such right does not impair the rights one of the Holders under the Guaranteeits authorized officers.
Appears in 1 contract
Samples: Southern Peru LTD
Guarantees. Subject to this Article 10, each of the Guarantors hereby, (a) Each Guarantor hereby jointly and severallyseverally unconditionally Guarantees, unconditionally guarantees on a senior unsecured basis, to each Holder of a Note authenticated and delivered by the Trustee Trustee, and to the Trustee on behalf of such Holder, the due and its successors and assigns, irrespective punctual payment of the validity and enforceability principal of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, ) and interestinterest (including Additional Amounts, if any, on, ) on such Note when and as the Notes will be promptly paid in full when duesame shall become due and payable, whether at maturity, by acceleration, redemption call for redemption, purchase or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of such Note and of this Indenture. In case of the extension or renewalfailure of the Issuer punctually to make any such payment, each Guarantor hereby jointly and severally agrees to cause such payment to be made punctually when and as the same shall become due and payable, whether at stated maturitymaturity or by acceleration, by acceleration call for redemption, purchase or otherwise, and as if such payment were made by the Issuer. In addition The Guarantee extends to the foregoing, each Issuer's repurchase obligations arising from an Asset Sale pursuant to Section 4.8 or a Change of Control pursuant to Section 4.13. Each Guarantor also agrees, unconditionally and hereby jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes such Note or this Indenture, the absence of any action to enforce the same, any exchange, release or non-perfection of any Lien on any collateral for, or any release or amendment or waiver of any term of any other Guarantee of, or any consent to departure from any requirement of any other Guarantee of all or any of the Notes, the effects of bankruptcy law applicable in the event of bankruptcy proceedings being opened with respect to the Issuer, of all or any portion of the claims of the Trustee or any of the Holders for payment of any of the Notes, any waiver or consent by any the Holder of such Note or by the Notes Trustee with respect to any provisions hereof thereof or thereofof this Indenture, the recovery obtaining of any judgment against the Company, Issuer or any action to enforce the same or any other circumstance circumstances which might otherwise constitute a legal or equitable discharge or defense of a guarantorguarantor (except payment in full); provided, however, that, notwithstanding the foregoing, no such waiver, amendment, consent or circumstance shall without the written consent of the Guarantors increase the principal amount of a Note or the interest rate thereon or change the currency of payment with respect to any Note, or alter the stated maturity thereof. Each Guarantor hereby waives the benefits of diligence, presentment, demand for payment, any requirement that the Trustee or any of paymentthe Holders protect, secure, perfect or insure any security interest in or other Lien on any property subject thereto or exhaust any right or take any action against the Issuer or any other Person or any collateral, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyIssuer, any right to require a proceeding first against the CompanyIssuer, protest, protest or notice with respect to such Note or the Indebtedness evidenced thereby and all demands whatsoever whatsoever, and covenant covenants that this Subsidiary Guarantee shall will not be discharged in respect of such Note except by complete performance of the obligations contained in such Note and in this Guarantee. Each Guarantor hereby agrees that, in the Notes and this Indenture. If any Holder event of a default in payment of principal (or premium, if any) or interest (including Additional Amounts, if any) on such Note, whether at their maturity, by acceleration, call for redemption, purchase or otherwise, legal proceedings may be instituted by the Trustee is required by any court on behalf of, or otherwise to return by, the Holder of such Note, subject to the Companyterms and conditions set forth in this In- denture, directly against each Guarantor to enforce this Guarantee without first proceeding against the Guarantors Issuer. No reference herein to this Indenture and no provision of this Guarantee or of this Indenture shall alter or impair the Guarantee of any custodianGuarantor, trusteewhich is absolute and unconditional, liquidator or other similar official acting in relation to either of the Company or due and punctual payment of the Guarantorsprincipal of (and premium, any amount paid by either to if any) and interest (including Additional Amounts, if any) on the Trustee or such Holder, Note upon which this Subsidiary Guarantee, to the extent theretofore discharged, Guarantee is endorsed. Each Guarantee shall be reinstated remain in full force and effect. Each Guarantor agrees that it shall not effect and continue to be entitled to effective should any right petition be filed by or against the Issuer for liquidation or reorganization or equivalent proceeding under applicable law, should the Issuer become insolvent or make an assignment for the benefit of subrogation in relation creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer's assets, or the equivalent of any of the foregoing under applicable law, and shall, to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees thatfullest extent permitted by law, continue to be effective or be reinstated, as between the Guarantorscase may be, if at any time payment and performance of the Notes, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the one handNotes, and whether as a voidable preference, fraudulent transfer, or as otherwise provided under similar laws affecting the Holders and the Trustee, on the other hand, (x) the maturity rights of creditors generally or under applicable laws of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes jurisdiction of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect formation of the obligations guaranteed herebyIssuer, and (y) in all as though such payment or performance had not been made. In the event of that any declaration of acceleration of payment, or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such obligations as provided in Article 6 hereofamount paid and not so rescinded, such obligations (whether reduced, restored or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guaranteereturned. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the this Guarantee.
Appears in 1 contract
Samples: Senior Indenture (Head Nv)
Guarantees. Subject Crescent Operating acknowledges that CBHS has agreed to this Article 10use its commercially reasonable best efforts to secure the full and complete release, each prior to the closing under the Purchase Agreement (and continuously thereafter if not released prior to such closing), of any and all guarantees (the "Magellan Guarantees") by the Sellers or any of their affiliates of any indebtedness or obligations of CBHS or its affiliates (other than CBHS) or any of the Guarantors hereby, jointly and severally, unconditionally guarantees Subsidiaries or their subsidiaries (or under any contract assigned to each Holder of a Note authenticated and delivered by CBHS pursuant to the Trustee Purchase Agreement) and to secure full and complete release, prior to the Trustee closing under the Purchase Agreement (and its successors continuously thereafter if not released prior to such closing), of any and assigns, irrespective all obligations (the "Magellan Obligations") (i) of the validity Sellers or any of their affiliates (other than the Subsidiaries) under any agreement which was assigned to CBHS or its subsidiaries pursuant to the Contribution Agreement, dated as of June 16, 1997, by and enforceability among Magellan, Crescent Operating and CBHS, and under which the Sellers or any of their affiliates (other than the Subsidiaries) remain obligors or indemnitors in any manner and (ii) under any agreement of any of the Subsidiaries or their subsidiaries (or under any contract assigned to CBHS pursuant to the Purchase Agreement) and under which the Sellers or any of their affiliates (other than the Subsidiaries) will remain obligors or indemnitors in any manner after the closing under the Purchase Agreement. Set forth on Schedule 4.11 to the Purchase Agreement, to the knowledge, after reasonable inquiry, of those persons specified on Schedule 2.04(b) to the Purchase Agreement, is a list of all Magellan Guarantees and Magellan Obligations. To the extent, after the date hereof, the Sellers discover there are other Magellan Guarantees or Magellan Obligations not identified on Schedule 4.11 to the Purchase Agreement ("Unlisted Obligations"), the Sellers may request Crescent Operating to add any such Unlisted Obligation to such Schedule 4.11. If Crescent Operating agrees to add an Unlisted Obligation, such Schedule 4.11 shall be automatically amended to include the Unlisted Obligation, which shall be treated as if it had appeared on such Schedule 4.11 at the time of execution of this IndentureAgreement. Should Crescent Operating object to the addition of an Unlisted Obligation, Magellan may terminate any such Unlisted Obligation (and the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premiumrelated underlying obligations, if any); provided that such termination is permitted under the applicable contractual agreement; provided, offurther, and interestthat CBHS or its affiliates shall agree to such termination if permitted under such agreement or permitted by any third party to such agreement. Crescent Operating agrees that, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or extent any Magellan Guarantee (listed on Schedule 4.11 to the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (bPurchase Agreement) in case of any extension of time of payment such indebtedness or renewal of any Notes obligation or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition Magellan Obligation (listed on Schedule 4.11 to the foregoingPurchase Agreement) is not fully and completely released on or before the closing under the Purchase Agreement, each Guarantor also agreesCrescent Operating will indemnify and hold harmless the Sellers and their respective affiliates and their successors and assigns from, unconditionally against and jointly and severally with each other Guarantor, to pay in respect of any and all expenses claims, liabilities, obligations, losses, costs, expenses, penalties, fines and other judgments (at equity or at law) and damages whenever arising or incurred (including, without limitation, counsel amounts paid in settlement, costs of investigation and reasonable attorneys' fees and expenses) incurred arising out of or relating to the Magellan Guarantees and Magellan Obligations. Notwithstanding anything to the contrary contained in this Agreement, Crescent Operating shall have no obligation under this Section 3.3 unless and until the conditions set forth in the Purchase Agreement shall have been fulfilled or waived, and all transactions contemplated by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors Purchase Agreement shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guaranteebeen consummated.
Appears in 1 contract
Guarantees. Subject to this Article 10The Guarantors hereby unconditionally guarantee, each of the Guarantors herebyon a senior unsecured basis and as primary obligor and not merely as surety, jointly and severallyseverally with each other Guarantor, unconditionally guarantees to each Holder of a Note authenticated the Notes and delivered by the Trustee the full and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium, if any, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, Notes and all other obligations and liabilities of the Company under this Indenture (including without limitation interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Holders Company or any Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) (all the Trustee hereunder foregoing being hereinafter collectively called the "Obligations"). The Obligations of Guarantors under the Note Guarantees will rank equally in right of payment with other Indebtedness of such Guarantor, except to the extent such other Indebtedness is expressly subordinate to the obligations arising under the Note Guarantee. Each Guarantor further agrees (to the extent permitted by law) that the Obligations may be extended or thereunder renewed, in whole or in part, without notice or further assent from it, and that it will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of remain bound under this Article X notwithstanding any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediatelyObligation. Each Guarantor agrees that this is a guarantee waives presentation to, demand of payment from and not a guarantee protest to the Company of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective any of the validity, regularity or enforceability Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Obligations. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal agreement or equitable discharge otherwise; (b) any extension or defense renewal of a guarantor. Each Guarantor hereby waives diligenceany thereof; (c) any rescission, presentmentwaiver, demand amendment or modification of payment, filing of claims with a court in the event of insolvency or bankruptcy any of the Companyterms or provisions of this Indenture, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If or any other agreement; (d) the release of any security held by any Holder or the Trustee is required by for the Obligations or any court of them; (e) the failure of any Holder to exercise any right or otherwise to return to remedy against any other Guarantor; or (f) any change in the ownership of the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees thatthat its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Obligations. The obligations of each Guarantor hereunder shall not be subject to any reduction, as between limitation, impairment or termination for any reason (other than payment of the GuarantorsObligations in full), on the one handincluding any claim of waiver, release, surrender, alteration or compromise, and the Holders and the Trusteeshall not be subject to any defense of setoff, on the other handcounterclaim, (x) the maturity recoupment or termination whatsoever or by reason of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteeinvalidity, notwithstanding any stay, injunction illegality or other prohibition preventing such acceleration in respect unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations guaranteed herebyof each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder to assert any claim or demand or to enforce any remedy under this Indenture, and (y) the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the event performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any declaration of acceleration Guarantor or would otherwise operate as a discharge of such obligations Guarantor as provided in Article 6 hereof, such obligations (whether a matter of law or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guaranteeequity.
Appears in 1 contract
Samples: Tower Automotive Inc
Guarantees. Subject to this Article 10XII, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and of, premium, if any, of, and interest, if any, on, interest on the Notes will shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and premium, if any of, and interest, if any, on, interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration pursuant to Section 4.02 hereof or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors Each Guarantor hereby agree agrees that their its obligations hereunder with regard to this Guarantee shall be joint and several and unconditional, irrespective of the validity, regularity validity or enforceability of the Notes or the obligations of the Company under this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the CompanyCompany or any other obligor with respect to this Indenture, the Notes or the Obligations of the Company under this Indenture or the Notes, any action to enforce the same or any other circumstance circumstances (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each Guarantor hereby further, to the extent permitted by law, waives diligenceand relinquishes all claims, presentmentrights and remedies accorded by applicable law to guarantors and agrees not to assert or take advantage of any such claims, demand rights or remedies, including but not limited to: (a) any right to require any of paymentthe Trustee, filing the Holders or the Company (each a "BENEFITED PARTY"), as a condition of claims with a court in the event of insolvency payment or bankruptcy of performance by such Guarantor, to (i) proceed against the Company, any right to require a proceeding first other guarantor (including any other Guarantor) of the Obligations under the Guarantees or any other Person, (ii) proceed against or exhaust any security held from the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors such other guarantor or any custodianother Person, trustee, liquidator (iii) proceed against or other similar official acting have resort to any balance of any deposit account or credit on the books of any Benefited Party in relation to either favor of the Company or any other Person, or (iv) pursue any other remedy in the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect power of any obligations guaranteed hereby until Benefited Party whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any disability or other defense of the Company including any defense based on or arising out of the lack of validity or the unenforceability of the Obligations under the Guarantees or any agreement or instrument relating thereto or by reason of the cessation of the liability of the Company from any cause other than payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders Obligations under the Guarantee.Guarantees; (c) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects
Appears in 1 contract
Samples: Arch Wireless Communications Inc
Guarantees. Subject to this Article 10, each of the Guarantors hereby, jointly The Guarantor hereby unconditionally and severally, unconditionally irrevocably guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective assigns (i)(a) the full and punctual payment of the validity principal and enforceability of this Indenture, interest on the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full such Holder when due, whether at maturity, by acceleration, by redemption or otherwise, and interest on all other monetary obligations of the overdue principal Company under this Indenture and premium, if any of, and interestthe Notes (including Additional Amounts, if any, on, ) and (b) the Notes, if any, if lawful, full and punctual performance within applicable grace periods of all other obligations of the Company to under this Indenture and the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; Notes and (bii) in the case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewalrenewal (all of the foregoing being hereinafter collectively called the "Guarantees"). The Guarantor waives presentation to, whether at stated maturitydemand of, payment from and protest to the Company of any of the Guarantees and also waives notice of protest for nonpayment. The Guarantor waives notice of any default under the Notes or the Guarantees. The Guarantees hereunder shall not be affected by acceleration (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company or any other Person under this Indenture, the Notes or any other agreement or otherwise. In addition to ; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the foregoingterms or provisions of this Indenture, each Guarantor also agrees, unconditionally and jointly and severally with each the Notes or any other Guarantor, to pay agreement; (d) the release of any and all expenses (including, without limitation, counsel fees and expenses) incurred security held by any Holder or the Trustee under this Indenture for the Guarantees or any of them; (e) the failure of any Holder or Trustee to exercise any right or remedy against any other guarantor of the Guarantees or (f) any change in enforcing any rights under a Subsidiary Guarantee with respect to a the ownership of the Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each The Guarantor further agrees that this is its Guarantees hereunder constitute a guarantee of payment payment, performance and compliance when due (and not a guarantee of collection). The Guarantors Guarantor hereby agree agrees that their its obligations hereunder shall be as principal and not merely as surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or failure to enforce the provisions of the validity, regularity or enforceability of the Notes any Note or this Indenture, or any waiver, modification, consent or indulgence granted to the absence Company with respect thereto (unless the same shall also be provided the Guarantor), by the Holder of any action to enforce Note or the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereofTrustee, the recovery of any judgment against the Company, Company or any action to enforce the same same, or any other circumstance circumstances which might may otherwise constitute a legal or equitable discharge of a surety or guarantor; provided that, notwithstanding the foregoing, no such waiver, modification, indulgence or circumstance shall, without the consent of the Guarantor, increase the principal amount of a Note or the interest rate thereon or increase any premium payable upon redemption thereof. The Guarantees shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of a guarantor. Each Guarantor hereby waives diligencesetoff, presentmentcounterclaim, demand of payment, filing of claims with a court in the event of insolvency recoupment or bankruptcy termination whatsoever or by reason of the Companyinvalidity, any right to require a proceeding first against illegality or unenforceability of the CompanyGuarantees or otherwise. Without limiting the generality of the foregoing, protest, notice and all demands whatsoever and covenant the Guarantor covenants that this Subsidiary Guarantee the Guarantees shall not be discharged except or impaired or otherwise affected by complete performance the failure of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any court waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of the Guarantor or would otherwise operate as a discharge of the Guarantor as a matter of law or equity. The Guarantor further agrees that the Guarantees shall continue to return to be effective or be reinstated, as the Companycase may be, the Guarantors if at any time payment, or any custodianpart thereof, trusteeof principal, liquidator premium, if any, interest or other similar official acting in relation to either Additional Amounts, if any, on the Tranche A Notes or the Tranche B Notes is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise. In furtherance of the Guarantorsforegoing and not in limitation of any other right which any Holder or the Trustee has at law or in equity against the Guarantor by virtue hereof, upon the failure of the Company to pay the principal of, premium on, if any, interest on, or Additional Amounts, if any, on the Tranche A Notes or the Tranche B Notes when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, or to perform or comply with any other obligation under the Notes, the Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid amount of such obligations under such Notes, (ii) accrued and unpaid interest on such obligations under such Notes (but only to the extent not prohibited by law) and (iii) all other monetary obligations with respect to such Notes (including Additional Amounts, if any) of the Company to the Holders and the Trustee. The Guarantor will be subrogated to all rights of the Holder against the Company in respect of any amount paid by either the Guarantor pursuant to the Trustee or such Holderprovisions of the Guarantee; provided, this Subsidiary Guaranteehowever, to that the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of, premium on, if any, interest and Additional Amounts, if any, on such Note shall have been paid in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed herebyfull. Each The Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed with respect to the Tranche A Notes or Tranche B Notes hereby may be accelerated as provided in Article 6 hereof VI for the purposes of this Subsidiary Guaranteethe Guarantees, herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed herebywith respect to such Notes, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofVI, such obligations the Guarantees (whether or not due and payable) shall forthwith become due and payable by the Guarantors Guarantor for the purpose purposes of this Subsidiary GuaranteeSection. The Guarantors shall have Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys' fees and expenses) incurred by the right to seek contribution from Trustee or any non-paying Guarantor so long as the exercise of such right does not impair the Holder in enforcing any rights of the Holders under the Guaranteethis Section.
Appears in 1 contract
Samples: Black & Decker Corp
Guarantees. Subject to this Article Section 10, each of the Guarantors hereby, jointly and severally, fully and unconditionally guarantees to each Holder of a Note authenticated guarantees, as primary obligor and delivered by the Trustee and not merely as surety, to the Trustee and its successors and assignsCollateral Agent for the benefit of the Secured Parties, irrespective of the validity and enforceability of this IndentureAgreement, the Notes Loans or the obligations of the Company hereunder or thereunderBorrower Obligations, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will Borrower Obligations shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and premium, if any of, and interest, if any, on, interest on the NotesLoans, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will Borrower Obligations shall be promptly paid in full or performed, all in accordance with the terms hereof and thereofhereof; and (b) in case of any extension of time of payment or renewal of any Notes Loans or any of such other obligationsBorrower Obligations, that same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this IndentureLoan Documents, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes Administrative Agent with respect to any provisions hereof or thereof, the recovery of any judgment against the CompanyBorrower, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives (to the extent permitted by law) diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyBorrower, any right to require a proceeding first against the CompanyBorrower, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary Guarantee shall not be discharged except pursuant to Section 9.20, and any rights of orden and excusión it may have 153 1233099.09-CHISR02A - MSW by complete performance virtue of law or otherwise, as provided in Articles 2812 (two thousand eight hundred and twelve), 2814 (two thousand eight hundred and fourteen) and 2816 (two thousand eight hundred and sixteen) of the obligations contained in Mexican Federal Civil Code, and its relative articles of the Notes and this Indenturecivil code of any state of Mexico. If This Section 10 shall continue to be effective or be reinstated, as the case may be, if at any Holder time any payment of any of the Obligations is rescinded or the Trustee is required must otherwise be returned by any court or otherwise to return to the Company, the Guarantors Secured Parties or any custodianother Person upon the insolvency, trusteebankruptcy or reorganization of the Borrower or otherwise, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or all as though such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, payment had not been made. Each Guarantee shall be reinstated remain in full force and effecteffect and continue to be effective should any petition be filed by or against the Borrower for liquidation or reorganization, should the Borrower become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Borrower’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Obligations are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Obligations, whether as a “voidable preference”, “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Obligations shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. In case any provision of this Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. This Guarantee issued by any Guarantor shall be a general senior obligation of such Guarantor and shall be equal in right of payment with all existing and future Senior Indebtedness of such Guarantor, including the 2025 Note Guarantees and the 2026 Note Guarantees of such Guarantor. Each payment to be made by a Guarantor in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature. Each Guarantor, the Administrative Agent and each Lender hereby confirms that it is the intention of all such parties that the Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Guarantee. To effectuate the foregoing intention, the Administrative Agent, each Lender and the Guarantors hereby irrevocably agree that the obligations of each Guarantor shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Section 10, result in the obligations of such Guarantor under its Guarantee not constituting unlawful financial assistance, a fraudulent conveyance or fraudulent transfer under applicable law. Each Guarantor agrees that it makes a payment under its Guarantee shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until upon payment in full of all obligations guaranteed hereby. Each Obligations under this Agreement to a contribution from each other Guarantor further agrees that, as between the Guarantors, in an amount equal to such other Guarantor’s pro rata portion of such payment based on the one handrespective net assets of all the Guarantors at the time of such payment determined in accordance with GAAP. Any Guarantee of a Guarantor incorporated under the laws of England and Wales shall not apply to the extent that it would result in such Guarantee constituting unlawful financial assistance within the meaning of sections 678 or 679 of the Companies Act 2006. Any Guarantee of a Guarantor incorporated under the laws of Ireland shall not apply to the extent that it would result in such Guarantee constituting financial assistance as prohibited by section 82 of the Irish Companies Act 2014. 154 1233099.09-CHISR02A - MSW No Guarantor will exercise any rights that it may now or hereafter acquire against any Loan Party or any other guarantor that arise from the existence, payment, performance or enforcement of such Guarantor’s obligations under this Section 10, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Secured Parties against any Loan Party or any other guarantor or any Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from any Loan Party or any other guarantor, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security solely on account of such claim, remedy or right, unless and until the Termination Conditions have been satisfied. If any amount shall be paid to any Guarantor in violation of the immediately preceding sentence at any time prior to the later of the date the Termination Conditions are satisfied and the Holders Maturity Date, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the TrusteeSecured Parties to be credited and applied to the Obligations and all other amounts payable under this Section 10, on whether matured or unmatured, in accordance with the terms of this Agreement, or to be held as Collateral for any Obligations or other handamounts payable under this Section 10 thereafter arising. If (i) any Guarantor shall make payment to the Secured Parties of all or any part of the Obligations, (xii) the maturity Termination Conditions have been satisfied and (iii) the Maturity Date shall have occurred, the Secured Parties will, at such Guarantor’s request and expense, execute and deliver to such Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the Obligations resulting from such payment by such Guarantor. For purposes of this Subsidiary GuaranteeSection 10, notwithstanding any stayeach Guarantor incorporated or formed under the laws of Mexico (each a “Mexican Guarantor”), injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors specifically for the purpose of receiving legal and/or judicial service of process in the United States of America in connection with this Subsidiary Guarantee. The Guarantors shall have Section 10, independently from the Lenders’ right to seek contribution from make and deliver services of process to the Mexican Guarantors in any nonother way or form which is legally valid, hereby designates the following agent and attorney-paying in-fact for such purposes in the United States of America (the “Mexican Process Agent”): NFE Management LLC The Corporation Trust Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000 Xxxxxx Xxxxxx of America Each Mexican Guarantor so long represents and warrants to the Lenders that on the date on which such entity joins this Agreement as a Guarantor (each, an “Accession Date”), it has received evidence of the exercise acceptance by the Mexican Process Agent of its appointment as such by the Mexican Guarantors. Additionally, each Mexican Guarantor covenants and agrees that it will take all necessary and appropriate action in order to grant in favor of the Mexican Process Agent, and within the fifteen (15) calendar days immediately following the applicable Accession Date, a document of authority or power of attorney granted by each Mexican Guarantor in favor of the Mexican Process Agent in full compliance with Mexican law and duly formalized for its validity in Mexico, through such corporate actions as may be required by each Mexican Guarantor’s incorporation documents and bylaws in order to fully and duly formalize the designation of the Mexican Process Agent as each Mexican Guarantor’s agent for service of process in the United States of America in accordance with Mexican law. Each Mexican Guarantor hereby agrees to provide a copy of the formalization of the designation of the Mexican Process Agent within the twenty-five (25) Business Day immediately following the Accession Date of such right does not impair the rights of the Holders under the Guarantee.Mexican Guarantor. 155 1233099.09-CHISR02A - MSW [Signature Pages Follow]
Appears in 1 contract
Samples: Assignment and Acceptance Agreement (New Fortress Energy Inc.)
Guarantees. Subject to the provisions of this Article 1011, each of the Guarantors hereby, jointly and severally, fully and unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this the Indenture, the Notes or the obligations other Obligations of the Company Issuers hereunder or thereunder, that: (a) the principal and premium, if any, of, premium and interest, if any, on, interest on the Notes will shall be promptly paid in full when due, whether at maturitythe maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, premium and interest, if any, on, interest on the Notes, if any, if to the extent lawful, and all other obligations Obligations of the Company Issuers to the Holders or the Trustee hereunder or thereunder will under the Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms hereof of the Indenture and thereofthe Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturityStated Maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their to the fullest extent permitted by applicable law, its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereofof the Indenture and the Notes, the recovery of any judgment against the CompanyIssuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each To the fullest extent permitted by applicable law, each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyIssuers, any right to require a proceeding first against the CompanyIssuers, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this the Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuers or Guarantors, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company Issuers or the Guarantors, any amount paid by either any of them to the Trustee or such Holder, this Subsidiary Guaranteethese Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 7 hereof for the purposes of this Subsidiary Guaranteethese Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 7 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guaranteethese Guarantees. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guarantees. Each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against an Issuer for liquidation, reorganization, should such Issuer become insolvent or make an assignment for the Guaranteebenefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuers’ assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. The Guarantee issued by any Guarantor shall be a general unsecured senior obligation of such Guarantor and shall be pari passu in right of payment with all existing and future Senior Indebtedness of such Guarantor, if any. Each payment to be made by a Guarantor in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature. Notwithstanding anything to the contrary, any direct or indirect parent company of the Company may guarantee the Notes and become a Guarantor hereunder.
Appears in 1 contract
Samples: Supplemental Indenture (Atlas Energy Resources, LLC)
Guarantees. Subject (i) From and after the A&R Closing Date and prior to this Article 10the Existing Notes Repayment Date, each the Borrower will not cause or permit any of its Subsidiaries (other than a Guarantor), directly or indirectly, to guarantee any Indebtedness with an aggregate principal amount in excess of $100,000,000, of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes Borrower or the obligations of the Company hereunder or thereunder, thatany other Guarantor unless such Subsidiary: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations within 20 Business Days of the Company date on which it guarantees Indebtedness of the Borrower or any Guarantor executes and delivers to the Holders or Agent a guarantee to which such Subsidiary shall guarantee (each, a “Guarantee”) all of the Trustee hereunder or thereunder will be promptly paid Borrower’s Obligations and other terms contained in full or performedthe applicable Guarantee and subject to the conditions contained in such Guarantee; provided that, all in accordance with for the terms hereof avoidance of doubt, such Guarantee shall include customary keepwell and thereofexcluded swap obligation provisions that are satisfactory to the Borrower and the Agent; and (b) in case delivers to the Agent an opinion of any extension of time of payment or renewal of any Notes or any counsel (which may contain customary exceptions) that such Guarantee has been duly authorized, executed and delivered by such Subsidiary and constitutes legal, valid, binding and enforceable obligation of such Subsidiary. (ii) Thereafter, such Subsidiary shall be a Guarantor for all purposes of this Agreement and other obligations, that same will be promptly paid in full when due or performed Loan Documents until such Guarantee is released in accordance with the provisions of this Agreement. In the event of a sale or other transfer or disposition of all of the Capital Stock in any Guarantor to any Person that is not an Affiliate of the Borrower in compliance with the terms of the extension this Agreement, or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event all or substantially all the assets or Capital Stock of insolvency a Guarantor are sold or bankruptcy otherwise transferred, by way of merger, consolidation or otherwise, to a Person that is not an Affiliate of the CompanyBorrower in compliance with the terms of this Agreement, then, without any right to require a proceeding first against further action on the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance part of the obligations contained in the Notes and this Indenture. If Agent or any Holder Lender, such Guarantor (or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or Person concurrently acquiring such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, assets of such Guarantor) shall be reinstated in full force deemed automatically and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect unconditionally cancelled, released and discharged of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees thatunder its Guarantee, as between evidenced by agreement, written instrument or confirmation executed by the GuarantorsAgent, on upon request. In addition, upon the one handrelease or discharge of any guarantee of other Indebtedness which resulted in the creation of a Guarantee (except a discharge or release by or as a result of payment under such guarantee), the Guarantor of such Guarantee shall be deemed automatically and unconditionally cancelled, released and discharged of any obligations under its Guarantee, as evidenced by agreement, written instrument or confirmation executed by the Holders and the TrusteeAgent, on the upon request. The Borrower may cause any other hand, (x) the maturity Subsidiary of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, Borrower to issue a Guarantee and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guaranteea Guarantor.
Appears in 1 contract
Samples: Credit Agreement (Aircastle LTD)
Guarantees. Subject This Security may after the date hereof be entitled to this Article 10, each certain Guarantees made for the benefit of the Guarantors hereby, jointly Holders. Reference is hereby made to the Indenture for the terms of any Guarantee (including any terms of subordination of such Guarantee that may apply). The Company will furnish to any Holder of record of Securities upon written request and severally, without charge a copy of the Indenture. A-9 [Form of Notation on Security Relating to Guarantee] SENIOR SUBORDINATED GUARANTEE The Guarantor (as defined in the Indenture referred to in the Security upon which this notation is endorsed) hereby unconditionally guarantees to each Holder of on a Note authenticated and delivered senior subordinated basis (such guarantee by the Trustee Guarantor being referred to herein as the "Guarantee") the due and to the Trustee and its successors and assigns, irrespective punctual payment of the validity and enforceability of this Indentureprincipal of, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interestinterest and Additional Interest, if any, on, on the Notes will be promptly paid in full when dueSecurities, whether at maturity, by acceleration, redemption acceleration or otherwise, the due and punctual pay- ment of interest on the overdue principal principal, premium and premium, if any of, interest and interestAdditional Interest, if any, on, on the Notes, if any, if lawfulSecurities, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performedTrustee, all in accordance ac- cordance with the terms hereof and thereof; and (b) set forth in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms Article Eleven of the extension or renewal, whether at stated maturity, by acceleration or otherwiseIndenture. In addition The obligations of the Guarantor to the foregoing, each Guarantor also agrees, unconditionally Holders of Securities and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, pursuant to the extent theretofore dischargedGuarantee and the Indenture are expressly set forth, shall be reinstated and are expressly subordinated and subject in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation payment to the Holders in respect of any obligations guaranteed hereby until prior payment in full of all obligations guaranteed herebyGuarantor Senior Indebtedness of such Guarantor, to the extent and in the manner provided, in Article Twelve of the Indenture, and reference is hereby made to such Indenture for the precise terms of the Guar- xxxxx therein made. Each Guarantor further agrees that, as between The Guarantee shall not be valid or obligatory for any purpose until the Guarantors, cer- tificate of authentication on the Securities upon which the Guarantee is noted shall have been executed by the Trustee under the Indenture by the manual sig- nature of one hand, of its authorized officers. This Guarantee shall be governed by and construed in accordance with the Holders and the Trustee, on the other hand, (x) the maturity laws of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for State of New York without regard to principles of conflicts of law. This Guarantee is subject to release upon the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) terms set forth in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due Inden- ture. Newport News Shipbuilding and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.Dry Dock Company By: ________________________________________ Name: Title:
Appears in 1 contract
Samples: Newport News Shipbuilding Inc
Guarantees. Subject to this Article 10, each of the Guarantors hereby, jointly and severally, unconditionally guarantees guarantees, on a senior unsecured basis, to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or held thereby and the obligations Obligations of the Company Issuers hereunder or and thereunder, that: (a) the principal of and premium, if any, of, interest and interestAdditional Interest, if any, on, and the conversion obligation with respect to, the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturityStated Maturity, by acceleration, redemption upon repurchase, redemption, conversion or otherwise, and interest on the overdue principal of and premium, if any of, (to the extent permitted by law) interest and interestAdditional Interest, if any, on, on the Notes, if any, if lawful, and all other obligations payment Obligations of the Company Issuers to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or and performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturityStated Maturity, by acceleration acceleration, upon repurchase, redemption, conversion or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that An Event of Default under this is a guarantee Indenture or the Notes shall constitute an event of payment default under the Guarantees, and not a guarantee shall entitle the Holders to accelerate the obligations of collectionthe Guarantors hereunder in the same manner and to the same extent as the Obligations of the Issuers. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Companyan Issuer, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each Guarantor further, to the extent permitted by law, hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Companyan Issuer, any right to require a proceeding first against the Companyan Issuer, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary its Guarantee shall will not be discharged except by complete performance of the obligations Obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Companyan Issuer, the Guarantors Guarantors, or any custodianCustodian, trustee, liquidator Trustee or other similar official acting in relation to either any of the Company Issuers or the Guarantors, any amount paid by either an Issuer or any Guarantor to the Trustee or such Holder, this Subsidiary Guaranteethe Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to to, and hereby waives, any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xa) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary its Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed herebythereby, and (yb) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors Guarantor for the purpose of this Subsidiary its Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeGuarantees.
Appears in 1 contract
Samples: Indenture (Legacy Reserves Inc.)
Guarantees. Subject to this Article 10Ten, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and of, premium, if any, of, and interest, if any, on, interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interestpremium, if any, on, and interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in the case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this IndentureIndenture or pursuant to Section 10.05. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof Six for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofSix, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 1 contract
Samples: Evergreen International Aviation Inc
Guarantees. Subject Prior to the Escrow Assumption, the Notes will not be Guaranteed. Following the Escrow Assumption, and subject to the provisions of this Article 10, each of the Guarantors hereby, jointly and severally, fully and unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations other Obligations of the Company Issuers hereunder or thereunder, that: (a) the principal of, premium and premiuminterest (including Additional Interest, if any, of, and interest, if any, on, ) on the Notes will shall be promptly paid in full when due, whether at maturitythe maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, premium and interestinterest (including Additional Interest, if any, on, ) on the Notes, if any, if to the extent lawful, and all other obligations Obligations of the Company Issuers to the Holders or the Trustee hereunder or thereunder will under this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms hereof of this Indenture and thereofthe Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturityStated Maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their to the fullest extent permitted by applicable law, its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereofof this Indenture and the Notes, the recovery of any judgment against the CompanyIssuers, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each To the fullest extent permitted by applicable law, each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyIssuers, any right to require a proceeding first against the CompanyIssuers, protest, notice and all demands whatsoever and covenant covenants that this Subsidiary its Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuers or Guarantors, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company Issuers or the Guarantors, any amount paid by either any of them to the Trustee or such Holder, this Subsidiary Guaranteethese Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Obligations guaranteed hereby until payment in full of all obligations Obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteethese Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guaranteethese Guarantees. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under these Guarantees. Each Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against an Issuer for liquidation, reorganization, should such Issuer become insolvent or make an assignment for the Guaranteebenefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuers’ assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. The Guarantee issued by any Guarantor shall be a general unsecured senior obligation of such Guarantor and shall be pari passu in right of payment with all existing and future Senior Indebtedness of such Guarantor, if any. Each payment to be made by a Guarantor in respect of its Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature. Notwithstanding anything to the contrary, any direct or indirect parent company of the Company may guarantee the Notes and become a Guarantor hereunder.
Appears in 1 contract
Samples: Supplemental Indenture (Atlas Resource Partners, L.P.)
Guarantees. Subject to this Article 10The Guarantors hereby unconditionally guarantee, each of the Guarantors herebyon a senior unsecured basis and as primary obligor and not merely as surety, jointly and severallyseverally with each other Guarantor, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee the full and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the principal of, premium and additional amounts, if any, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, Notes and all other obligations and liabilities of the Company Issuer under this Indenture (including without limitation interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Holders Issuer, the Company or any Subsidiary Guarantor whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) (all the Trustee hereunder foregoing being hereinafter collectively called the “Obligations”). The Obligations of each of the Guarantors under the Notes Guarantees shall rank equally in right of payment with other Indebtedness of each such Guarantor, except to the extent such other Indebtedness is expressly subordinate to the obligations arising under the Notes Guarantee. Each Guarantor further agrees (to the extent permitted by law) that the Obligations may be extended or thereunder will be promptly paid renewed, in full whole or performedin part, all in accordance with the terms hereof without notice or further assent from it, and thereof; and (b) in case of that it shall remain bound under this Article X notwithstanding any extension of time of payment or renewal of any Obligation. Each Guarantor waives presentation to, demand of payment from and protest to the Issuer of any of the Obligations and also waives notice of protest for nonpayment. Each Guarantor waives notice of any default under the Notes or the Obligations. The obligations of each Guarantor hereunder shall not be affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Issuer or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Obligations or any of them; (e) the failure of any Holder to exercise any right or remedy against any other Guarantor; or (f) any change in the ownership of the Issuer or the Company. Each Guarantor further agrees that its Guarantee herein constitutes a Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Obligations. The obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Guarantor or would otherwise operate as a discharge of such other obligations, Guarantor as a matter of law or equity. Each Guarantor agrees that same will be promptly paid its Guarantee herein shall remain in full when due force and effect until payment in full of all the Obligations or performed such Guarantor is released from its Guarantee upon the merger, amalgamation or the sale of all the Capital Stock or all or substantially all of the assets of the Guarantor in compliance with Section 10.2 or otherwise in accordance with the terms of this Indenture. Each Guarantor further agrees that its Guarantee herein shall continue to be effective or be reinstated, as the extension case may be, if at any time payment, or renewalany part thereof, whether at stated maturity, of principal of or interest on any of the Obligations is rescinded or must otherwise be restored by acceleration any Holder upon the bankruptcy or reorganization of the Issuer or otherwise. In addition furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the foregoingObligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Guarantor also agreeshereby promises to and shall, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred upon receipt of written demand by the Trustee under this Indenture Trustee, forthwith pay, or cause to be paid, in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guaranteecash, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation Holders an amount equal to the Holders in respect sum of any obligations guaranteed hereby until payment in full (i) the unpaid amount of all obligations guaranteed herebysuch Obligations then due and owing and (ii) accrued and unpaid interest on such Obligations then due and owing (but only to the extent not prohibited by law). Each Guarantor further agrees that, as between the Guarantorssuch Guarantor, on the one hand, and the Holders and the TrusteeHolders, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof this Indenture for the purposes of this Subsidiary Guaranteeits Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Obligations guaranteed hereby, hereby and (y) in the event of any such declaration of acceleration of such obligations as provided in Article 6 hereofObligations, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors Guarantor for the purpose purposes of this Subsidiary Guarantee. The Guarantors shall have Each Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of Trustee or the Holders in enforcing any rights under the Guaranteethis Section.
Appears in 1 contract
Samples: Quiksilver Inc
Guarantees. Subject Each of the Guarantors hereby, irrevocably, unconditionally and absolutely, guarantees the due and punctual payment and performance when due of all of the obligations of Parent and Purchaser under this Agreement (collectively referred to as the "Guaranteed Obligations"). This Guaranty is a guaranty of payment, and not of collection, and a direct obligation of each Guarantor. Accordingly, Platform shall not be obligated or required before enforcing this Article 10Guaranty against any Guarantor: (a) to pursue any right or remedy Platform may have against Parent, Purchaser or any other Guarantor or commence any suit or other proceeding against Parent, Purchaser or any other Guarantor in any court or other tribunal; (b) to make any claim in a liquidation or bankruptcy of Parent, Purchaser or any other Guarantor; or (c) to make demand of Parent, Purchaser or any other Guarantor. In this connection, each of the Guarantors herebyhereby waives the right of such Guarantor to require any holder of the Guaranteed Obligations to take action against Parent or Purchaser as provided by applicable Law; provided, jointly and severallyhowever, unconditionally guarantees to that each Holder of a Note authenticated and delivered by the Trustee and Guarantors may raise any defense or argument (other than defenses or arguments relating to the Trustee due authorization, execution, delivery and its successors enforceability or validity of this Agreement as it relates to Parent or 54 60 Purchaser) available to Parent or Purchaser under this Agreement and assignsshall have no obligation to pay or perform if Parent or Purchaser would not be obligated to pay or perform under the terms of this Agreement, irrespective and in this connection, it shall not be a defense to payment or performance by a Guarantor that this Agreement or the Guaranteed Obligations have not been duly authorized or incurred by Parent or Purchaser or that this Agreement or the Guaranteed Obligations are unenforceable or invalid obligations of Parent or Purchaser. The obligations of each of the validity and enforceability Guarantors hereunder shall not be released, discharged, suspended or terminated by any invalidity or unenforceability of this Indenture, the Notes or any of the obligations of the Company Parent or Purchaser hereunder. All sums payable by Vedior hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will shall be promptly paid in full when duewithout deduction for any withholding Tax or liability imposed by any applicable Law, whether at maturity, by acceleration, redemption governmental agency or otherwiseauthority located outside of the United States, and interest on in the overdue principal and premiumevent that Vedior is required by such applicable Law or by such governmental agency or authority to make any such deduction or withholding Tax, if any Vedior shall pay to Platform such additional amount as will result in the receipt by Platform of the full amount payable hereunder had such deduction or withholding not occurred or been required. It is the intent of each Guarantor that such Guarantor's maximum liability hereunder shall be, but not in excess of, and interestthe maximum amount which would not otherwise cause the Guaranteed Obligations to be avoidable or unenforceable against the Guarantor under (i) Section 548 of the Bankruptcy Code of 1978, as amended, or (ii) any state fraudulent transfer or fraudulent conveyance act or statute applied in such case or proceeding by virtue of Section 544 of the Bankruptcy Code (such laws, acts or statutes referred to herein as "Avoidance Provisions"). To the end set forth in this paragraph, but only to the extent that the Guaranteed Obligations would otherwise be subject to avoidance under the Avoidance Provisions if anya Guarantor is not deemed to have received valuable consideration, onfair value or reasonably equivalent value for the Guaranteed Obligations, or if the Guaranteed Obligations would render a Guarantor insolvent, or leave a Guarantor with an unreasonably small capital to conduct its business, or cause the Guarantor to have incurred debts (or to have intended to have incurred debts) beyond its ability to pay such debts as they mature, in each case as of the time any of the Guaranteed Obligations are deemed to have been incurred under the Avoidance Provisions, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each maximum Guaranteed Obligations for which a Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations liable hereunder shall be unconditionalreduced to that amount which, irrespective after giving effect thereto, would not cause the Guaranteed Obligations, as so reduced, to be subject to avoidance under the Avoidance Provisions. Notwithstanding anything to the contrary in this Agreement, (i) the sum of the validityaggregate amount payable by Vedior hereunder and the aggregate amount payable by SANA hereunder shall not exceed $80 million (provided, regularity or enforceability of the Notes or this Indenturehowever, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee limitation shall not be discharged except by complete performance in no way limit the liability of the obligations contained in the Notes and Parent or Purchaser under this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed herebyAgreement), and (yii) in the event obligations of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due Vedior and payable) SANA hereunder shall forthwith become due and payable by terminate immediately prior to the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights satisfaction of the Holders under the Guaranteeprovisions of Sections 7.14 and 7.15.
Appears in 1 contract
Guarantees. (a) Subject to this Article 1011, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally and fully and unconditionally, guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of of, this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a1) the principal and of, premium, if any, of, and interestinterest and Additional Interest, if any, on, on the Notes will shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interestpremium, if any, onand interest and Additional Interest, if any, on the Notes, if any, if lawfullawful (subject in all cases to any applicable grace period provided herein), and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence delivery of any action to enforce the same, any waiver or consent Note by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on after the other handauthentication thereof hereunder, (x) the maturity shall constitute due delivery of the obligations guaranteed hereby may be accelerated as provided Note Guarantee set forth in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect Indenture on behalf of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeGuarantors.
Appears in 1 contract
Guarantees. Subject to the provisions of this Article 1011, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations Obligations of the Company Issuers hereunder or thereunder, that: (a) the principal of, premium, interest and premiumLiquidated Damages, if any, of, and interest, if any, on, on the Notes will shall be promptly paid in full when due, whether at maturitythe maturity or interest payment or mandatory redemption date, by acceleration, redemption or otherwise, and interest on the overdue principal and of, premium, if any of, interest and interestLiquidated Damages, if any, on, on the Notes, if any, if lawful, and all other obligations Obligations of the Company Issuers to the Holders or the Trustee hereunder or thereunder will under this Indenture and the Notes shall be promptly paid in full or performed, all in accordance with the terms hereof of this Indenture and thereofthe Notes; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturityStated Maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment 87 94 when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Subsidiary Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereofof this Indenture and the Notes, the recovery of any judgment against the CompanyIssuers, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorSubsidiary Guarantor. Each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyIssuers, any right to require a proceeding first against the CompanyIssuers, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee the Guarantees shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the CompanyIssuers or Subsidiary Guarantors, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company Issuers or the Subsidiary Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guaranteethese Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guaranteethese Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations Obligations as provided in Article 6 hereof, such obligations Obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary Guaranteethese Guarantees. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guaranteethese Guarantees.
Appears in 1 contract
Guarantees. Subject (a) Guarantor shall use reasonable endeavors to this Article 10procure, at its cost, that at Closing each HI Entity is released from all guarantees, indemnities, surety bonds, lease sureties, letters of the Guarantors hereby, jointly credit and severally, unconditionally guarantees to each Holder letters of a Note authenticated comfort (“Guarantees”) given or extended by such HI Entity on behalf of any member of Sellers’ Group and delivered by the Trustee and not related to the Trustee Business and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the that all obligations of the Company hereunder or thereunderHI Entities in respect thereof are terminated, that: (a) the principal with, in each case, such removal, release and premiumtermination to be in form and substance reasonably satisfactory to Buyer; provided, if anyhowever, of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations that no member of the Company Sellers’ Group shall be obliged to the Holders incur any cost (other than legal costs and other advisor’s fees), including without limitation pledge any assets, exercise any right of counter-claim or the Trustee hereunder set-off or thereunder will be promptly paid withhold payment of any sum in full doing so. If required in order to obtain any such release, Guarantor or performed, all in accordance another member of Sellers’ Group shall enter into a Guarantee with the releasing beneficiary on substantially identical terms hereof as the Guarantee from which an HI Entity is being released. If Guarantor has been unable to effect any such removal, release and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes termination with respect to any provisions hereof or thereofsuch Guarantee effective as of Closing, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that after Closing it shall not be entitled use its reasonable efforts, at its cost, to any right of subrogation in relation effect such substitution, removal and release and termination as soon as possible subject to the Holders proviso above. Sellers covenant to pay to Buyer, by way of adjustment to the consideration paid for the Shares, such amount as is required to indemnify on an after-Tax basis and hold Buyer and its Affiliates (including the HI Entities), as applicable, harmless from and against and in respect of any obligations guaranteed hereby until payment in full of and all obligations guaranteed hereby. Each Guarantor further agrees thatliabilities, as between damages, losses, claims, proceedings, judgments and settlements (“Loss”) incurred by Buyer and its Affiliates (including the GuarantorsHI Entities), on after Closing under or pursuant to any such Guarantee to the one hand, extent that (i) such Loss relates to the Retained Business and not to the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, Business and (yii) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or Loss was not due caused by and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution did not result from any non-paying Guarantor so long as the exercise actions of such right does not impair the rights of the Holders under the GuaranteeBuyer or any HI Entity.
Appears in 1 contract
Guarantees. Subject to this Article 1011, each of the Guarantors hereby, jointly and severally, unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal of and premium, if any, of, and interest, if any, on, interest on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and premium, if any of, and interest, if any, on, interest on the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Parent Guarantee or Subsidiary Guarantee Guarantee, as applicable, shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Parent Guarantee and this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Parent Guarantee and this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Parent Guarantee and this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 1 contract
Samples: Indenture (Appleton Papers Inc/Wi)
Guarantees. Subject to this Article 10, each of the Guarantors herebyEach Guarantor unconditionally guarantees, jointly with each other Guarantor and severally, unconditionally guarantees to each Holder of as a Note authenticated primary obligor and delivered by the Trustee and to the Trustee and its successors and assignsnot merely as a surety, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the due and punctual payment by each Borrower (other than itself) of (i) the principal of and premium, if any, ofand interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Revolving Credit Advances made to such Borrower, when and interest, if any, on, the Notes will be promptly paid in full when as due, whether at maturity, by acceleration, redemption upon one or more dates set for prepayment or otherwise, and interest on (ii) each payment required to be made by such Borrower under the overdue principal and premium, if any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders Credit Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements, interest thereon and obligations guaranteed hereby until to provide cash collateral and (iii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of such Borrower to the Administrative Agent and each Lender under the Credit Agreement and the other Loan Documents (collectively, the “Guaranteed Parties”), whether such amounts shall have accrued prior to, on or after the Closing Date, (b) the due and punctual payment in full and performance of all covenants, agreements, obligations and liabilities of each Borrower (other than itself), monetary or otherwise, under or pursuant to the Credit Agreement and the other Loan Documents and (c) the due and punctual payment and performance of all obligations guaranteed herebyof each Borrower (other than itself), monetary or otherwise, under each Interest Rate Agreement in effect on the date hereof to which any Lender (or an Affiliate of a Lender) is a party and each Interest Rate Agreement entered into after the date hereof with any counterparty that is a Lender (or an Affiliate of a Lender) at the time such Interest Rate Agreement is entered into (all the monetary and other obligations referred to in the preceding clauses (a) through (c) being collectively called the “Obligations”). Anything contained in this Agreement to the contrary notwithstanding, the obligations of TRS hereunder, and the obligations of any Additional Borrower in respect of the obligations of Rayonier, shall be limited to a maximum aggregate amount equal to the greatest amount that would not render such obligations subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any provisions of applicable law (collectively, the “Fraudulent Transfer Laws”), in each case after giving effect to all other liabilities of TRS or such Additional Borrower, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws and after giving effect as assets to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation, contribution, reimbursement, indemnity or similar rights of TRS or such Additional Borrower, as the case may be, pursuant to (i) applicable law or (ii) any agreement providing for an equitable allocation among TRS or such Additional Borrower, as the case may be, and other Affiliates of Rayonier of obligations arising under Guarantees by such parties. Each Guarantor further agrees thatthat the Obligations may be extended or renewed, as between the Guarantorsin whole or in part, on the one handwithout notice to or further assent from it, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, that it will remain bound upon its guarantee notwithstanding any stay, injunction extension or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event renewal of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the GuaranteeObligation.
Appears in 1 contract
Guarantees. Subject to this Article 10By its execution hereof, each of the Guarantors herebyacknowledges and agrees that it receives substantial benefits from the Issuers and that such Guarantor is providing its Guarantee for good and valuable consideration, including, without limitation, such substantial benefits and services. Accordingly, subject to the provisions of this Article XI, each Guarantor, including present and future Subsidiaries (other than any Excluded Foreign Subsidiaries, except to the extent required by Section 4.15 hereof) hereby jointly and severally, irrevocably and unconditionally guarantees on a senior secured basis to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, assigns that: (ai) (A) the principal of and premium, if any, of, and interestInterest (and Liquidated Damages, if any, on, ) on the Notes will shall be promptly duly and punctually paid in full when due, whether at maturity, by acceleration, redemption call for redemption, upon a Change of Control Offer, an Asset Sale Offer or otherwise, and interest (B) Interest on the overdue principal of and premium, if any ofany, and interest(to the extent permitted by law) Interest on any Interest, if any (and Liquidated Damages, if any), on, on the Notes, if any, if lawfulNotes shall be promptly paid in full, and (C) all other obligations Obligations of the Company Issuers to the Holders or the Trustee hereunder under the Notes, this Indenture, the Collateral Agreements and the Registration Rights Agreement (including fees, expenses or thereunder will otherwise) shall be promptly duly and punctually paid in full or when due and performed, all in accordance with the terms hereof and thereof; and (bii) in case of any extension of time of payment or renewal of any Notes or any of such other obligationsObligations, that the same will shall be promptly duly and punctually paid in full when due or and performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration acceleration, call for redemption, upon a Change of Control Offer, an Asset Sale Offer or otherwise. In addition , subject, however, in the case of clauses (i) and (ii) above, to the foregoinglimitations set forth in Section 11.6 hereof (such Obligations guaranteed by the Guarantors, collectively, the “Guarantee Obligations”). Subject to the provisions of this Article XI, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations its Guarantee hereunder shall be unconditional, irrespective of the validity, regularity 108 or enforceability of the Notes or Notes, this Indenture, the Collateral Agreements or the Registration Rights Agreement or the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, any releases of the recovery Collateral, the entry of any judgment against any of the CompanyIssuers, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims and relinquishes with a court in the event of insolvency or bankruptcy of the Company, respect to its Guarantee Obligations: (a) any right to require the Trustee, the Holders or the Issuers (each, a proceeding first “Benefited Party”) to proceed against the CompanyIssuers, protestthe Subsidiaries or any other Person or to proceed against or exhaust any security held by a Benefited Party at any time or to pursue any other remedy in the Trustee’s power before proceeding against the Guarantors; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) demand, protest and notice of any kind (except as expressly required by this Indenture); (d) any defense based upon an election of remedies by a Benefited Party, including but not limited to an election to proceed against the Guarantors for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Benefited Party’s election, in any proceeding instituted under the Bankruptcy Law, of the application of Section 1111(b)(2) of the Bankruptcy Code; and all demands whatsoever and (g) any defense based on any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code. The Guarantors hereby covenant that this Subsidiary Guarantee that, except as otherwise provided in the Guarantees, the Guarantees shall not be discharged except by complete performance payment in full of all Guarantee Obligations, including the obligations contained in principal of and premium, if any, and Interest (and Liquidated Damages, if any) on the Notes and all other costs provided for under this IndentureIndenture or as provided in Article VIII. If any Holder or the Trustee is required by any court or otherwise to return to either the CompanyIssuers or the Guarantors, the Guarantors or any custodian, trustee, liquidator trustee or other similar official acting in relation to either the Company Issuers or the Guarantors, any amount paid by either the Issuers or the Guarantors to the Trustee or such Holder, this Subsidiary Guaranteethe Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor of the Guarantors agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed Guarantee Obligations hereby until payment in full of all obligations guaranteed herebysuch Guarantee Obligations. Each Guarantor further agrees that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby Obligations may be accelerated as provided in Article 6 VI hereof for the purposes of this Subsidiary Guaranteehereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed herebyGuarantee Obligations, and (y) in the event of any declaration of acceleration of such obligations the Obligations as provided in Article 6 VI hereof, such obligations Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors such Guarantor for the purpose of this Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee.
Appears in 1 contract
Guarantees. Subject to the provisions of this Article 10Twelve, each of the Guarantors hereby, hereby jointly and severally, severally unconditionally and irrevocably guarantees to each Holder of a Note Debt Security authenticated and delivered by the Trustee Trustee, and to the Trustee Trustee, the due and its successors and assigns, irrespective punctual payment of the validity and enforceability principal of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (a) the principal and premium, if any, of, and interest, if any, on, the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, ) and interest on the overdue principal and premium, if each such Debt Security (including any of, and interest, if any, on, the Notes, if any, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed additional amounts payable in accordance with the terms of the extension or renewalsuch Debt Security and this Indenture), whether at stated maturitythe Stated Maturity, by acceleration declaration of acceleration, call for redemption, request for redemption, repurchase at the option of the Holder or otherwise, in accordance with the terms of such Debt Security and of this Indenture and all other amounts due and owing under this Indenture. In case of the failure of the Issuer punctually to make any such payment of principal (or premium, if any) or interest (including any additional amounts as referred to above), each of the Guarantors hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, whether at the Stated Maturity or by declaration of acceleration, call for redemption, request for redemption, repayment or any other amount due and owing under this Indenture at the option of the Holder or otherwise, and as if such payment were made by the Issuer. Each Guarantor hereby agrees to pay, in addition to the foregoingamounts stated above, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, including reasonable counsel fees and expenses) incurred by the Trustee under this Indenture or the Holders in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantorany Guarantee. Failing payment when due Each of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor hereby agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their its obligations hereunder shall be as if it were principal debtor and not merely surety, and shall be absolute and unconditional, irrespective of the validity, regularity or enforceability of the Notes any Debt Security or this Indenture, the absence of any action to enforce the same, any waiver or consent by any the Holder of such Debt Security or by the Notes Trustee or the Paying Agent with respect to any provisions hereof thereof or thereofof this Indenture, any release of any other guarantor, the recovery of any judgment against the Company, Issuer or any action to enforce the same or any other circumstance circumstances which might otherwise constitute a legal or equitable discharge or defense of a guarantorany Guarantor. Each Guarantor hereby waives the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyIssuer, any right to require a proceeding first against the CompanyIssuer, protest, protest or notice with respect to such Debt Security or the indebtedness evidenced thereby and all demands whatsoever whatsoever, and covenant covenants that this Subsidiary Guarantee shall its Guarantees will not be discharged except by complete performance of all of the obligations of such Guarantor contained in this Indenture and the Notes Debt Securities and this Indenturein such Guarantees. If any Holder the Trustee or the Trustee Holder of any Debt Security is required by any court or otherwise to return (and does so return) to the CompanyIssuer or to any Guarantor, the Guarantors or any custodian, receiver, liquidator, trustee, liquidator sequestrator or other similar official acting in relation to either the Company Issuer or the Guarantorssuch Guarantor, any amount paid by either to the Trustee or such HolderHolder in respect of a Debt Security, this Subsidiary Guaranteethese Guarantees, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees further agrees, to the fullest extent that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Guarantor further agrees lawfully may do so, that, as between the Guarantorsit, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity Maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 Five hereof for the purposes of this Subsidiary Guaranteethese Guarantees, notwithstanding any stay, injunction or other prohibition extant under any applicable Bankruptcy Law preventing such acceleration in respect of the obligations guaranteed hereby. The Guarantees of each Guarantor constitute direct, unconditional, unsubordinated and (yexcept as provided by Sections 804 and 805) unsecured obligations of such Guarantor without preference among themselves and will rank at least equally with all other unsecured and unsubordinated obligations of such Guarantor (including unsecured and unsubordinated guarantees by such Guarantor of Indebtedness of others), subject, in the event of any declaration insolvency, to laws of acceleration general applicability relating to or affecting creditors’ rights. Each of such the Guarantors hereby agrees that its obligations as provided hereunder may be enforced against either of the Guarantors, in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable the event of a default in payment with respect to the Debt Securities by the Guarantors for Issuer, without making prior demand upon or seeking to enforce remedies against the purpose of this Subsidiary GuaranteeIssuer, the other Guarantor or other persons. The Guarantors Each Guarantor shall have the right be subrogated to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the all rights of the Holders under against the GuaranteeIssuer in respect of any amounts paid to such Holders by such Guarantor pursuant to the provisions of the Guarantees of this Indenture; provided, however, that no Guarantor shall be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until the principal of (and premium, if any, on) and interest, if any, on all Debt Securities (including any additional amounts as referred to above) issued hereunder shall have been paid in full.
Appears in 1 contract
Guarantees. Subject to this Article 1011, the Intercreditor Agreement and the Agreed Security Principles, each of the Guarantors hereby, jointly and severally, severally and unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee (or Authentication Agent) and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company Issuer hereunder or thereunder, that: (ai) the principal and of, premium, if any, of, interest and interestAdditional Amounts, if any, on, on the Notes will shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and premium, if any of, and interestpremium, if any, on, the Notesinterest and Additional Amounts, if any, if lawfulon the Notes (to the extent permitted by law), and all other obligations of the Company Issuer to the Holders or the Trustee hereunder or thereunder will shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (bii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturityStated Maturity, by acceleration or otherwise. In addition to otherwise (all the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by foregoing being hereinafter collectively called the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor“Guaranteed Obligations”). Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the CompanyIssuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantorGuarantor. Without limiting the generality of the foregoing, each Guarantor’s liability under its Note Guarantee shall extend to all obligations under the Notes and this Indenture (including, without limitation, interest, fees, costs and expenses) that would be owed but for the fact that they are unenforceable or not allowable due to any proceeding under Bankruptcy Law involving the Issuer or any Guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the CompanyIssuer, any right to require a proceeding first against the CompanyIssuer, protest, notice and all demands whatsoever and covenant that this Subsidiary Note Guarantee shall not be discharged except by complete payment and performance of the obligations contained in the Notes and this Indenture and the obligations of each Guarantor under this Note Guarantee shall not be subject to any reduction, limitation, impairment, set-off, defense, counterclaim, discharge or termination for any reason other than the complete payment and performance of the obligations contained in the Notes and this Indenture. If any Holder Holder, the Trustee or the Trustee Security Agent is required by any court or otherwise to return to the CompanyIssuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either of the Company Issuer or the Guarantors, any amount paid by either to the Trustee Trustee, the Security Agent or such Holder, this Subsidiary Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby or any collateral securing any such obligations until payment and performance in full of all obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (xi) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (yii) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Note Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantee.
Appears in 1 contract
Guarantees. Subject to this Article 10, each Each of the Guarantors hereby, jointly and severally, unconditionally guarantees Guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its the Collateral Agent and their respective successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes Notes, the Security Documents or the obligations of the Company hereunder or thereunder, that: (a) the principal of and premium, if any, of, and interest, including Liquidated Damages, if any, on, on the Notes will shall be promptly paid in full when due, whether at maturityStated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on premium, if any ofany, and interest, if any, on, the Notesincluding Liquidated Damages, if any, if lawful, and all other obligations of the Company to the Holders Holders, the Trustee or the Trustee Collateral Agent hereunder or thereunder will shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturityStated Maturity, by acceleration acceleration, redemption or otherwise. In addition to the foregoing, each Guarantor also agrees, unconditionally and jointly and severally with each other Guarantor, to pay any and all expenses (including, without limitation, counsel fees and expenses) incurred by the Trustee under this Indenture in enforcing any rights under a Subsidiary Guarantee with respect to a Guarantor. Failing payment when due of any amount so guaranteed Guaranteed or any performance so guaranteed Guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection. The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes Notes, this Indenture or this Indenturethe Security Documents, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the CompanyCompany or any Guarantor, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the CompanyCompany or another Guarantor, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee the Guarantees of the Notes shall not be discharged except by complete performance of the obligations contained in the Notes Notes, this Indenture and this Indenturethe Security Documents. If any Holder Holder, the Trustee or the Trustee Collateral Agent is required by any court or otherwise to return to the Company, the Guarantors Company or any custodianof the Guarantors, trustee, liquidator or any Custodian or other similar official acting in relation to either the Company or any of the Guarantors, any amount paid by either to the Trustee Trustee, to the Collateral Agent or to such Holder, this Subsidiary Guaranteethe Guarantees of the Notes, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders of Notes in respect of any obligations guaranteed Guaranteed hereby until payment in full of all obligations guaranteed Guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders Holders, the Trustee and the TrusteeCollateral Agent, on the other hand, (x) the maturity of the obligations guaranteed Guaranteed hereby may be accelerated as provided in Article 6 hereof Seven for the purposes of this Subsidiary Guaranteethe Guarantees of the Notes, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, Guaranteed hereby and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereofSeven, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Subsidiary Guaranteethe Guarantees of the Notes. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Trustee, the Collateral Agent or the Holders under the GuaranteeGuarantees of the Notes.
Appears in 1 contract
